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BULLETINS 


FOR   THE 


CONSTITUTIONAL  CONVENTION 

1917-1918 


VOLUME  I 
Bulletins  1  to  16 


SUBMITTED  TO  THE  CONSTITUTIONAL  CONVENTION   BY  THE 

COMMISSION  TO  COMPILE  INFORMATION  AND  DATA  FOR 

THE  USE  OF  THE  CONSTITUTIONAL  CONVENTION 


BOSTON 

WRIGHT  &  POTTER  PRINTING  COMPANY,  STATE  PRINTERS 

32  DERNE  STREET 

1918 


JK 

I 


CONTENTS 

Volume  I. 


PAGB 

Bulletin'  No.  1.     The  Procedure  of  Constitutional  Conventions,   .  7 

Bulletin  No.  2.    State  Budget  Systems  in  the  United  States,        .  51 

Bulletin  No.  3.     The  AboHtion  of  the  Governor's  Council,    .        .  105 
Supplement,  Statutory  Powers  and  Duties  of  the  Governor  and 

Council, 122 

Bulletin  No.  4.     The  Pardoning  Power, 137 

Bulletin  No.  5.    A  Summary  of  Existing  Laws  on  Old  Age  Pen- 
sion Systems, 155 


Bulletin  No.  6.     The  Initiative  and  Referendum,    . 

Bulletin  No.  7.    The  PubHc  Opinion  Law  of  Massachusetts, 

Bulletin  No.  8.     County  Government  in  Massachusetts, 

Bulletin  No.  9.     Biennial  Elections  and  Legislative  Sessions, 

Bulletin  No.  10.    The  Short  Ballot,  

Bulletin  No.  11.     Municipal  Home  Rule,  .       .       .       .       . 

Bulletin  No.  12.     Commission  Government  in  American  Cities, 

Bulletin  No.  13.     The  City-Manager  Plan  of  Municipal  Govern- 
ment,         489 

-Bulletin  No.  14.     Constitutional  Restrictions  on  Municipal  Li- 

debtedness 521 

Bulletin  No.  15.    Constitutional  Restrictions  on  State  Debts,      .  549 

Bulletin  No.  16.    The  Selection  and  Retirement  of  Judges,  .       .  585 


179 
287 
299 
355 
391 
415 
451 


O 


711568 


THE   COMMONWEALTH    OF    MASSACHUSETTS 


Commission  to  Compile  Information  and  Data 

FOR  THE  USE  OF  THE 

Constitutional  Convention 

ROOM   426,    STATE   HOUSE 

BOSTON 


The  Commission 


WILLIAM   B.   MUNRO,  chairman 
LAWRENCE  B.   EVANS,  vice  chairman 
ROGER   SHERMAN   HOAR 


HENRY   WARD  BIRD,  secretary 


BULLETIN   No.    1 


THE    PROCEDURE    OF 
CONSTITUTIONAL    CONVENTIONS 


CONTENTS. 


PAGE 

I.     Organization  of  the  Convention, 11 

II.     The  Nature  of  a  Constitutional  Convention  as  affecting  its 

Procedure, 14 

III.  Subject-matter  of  the  Rules  of  the  Convention,         ...  15 

IV.  The  Committees  of  the  Convention, 19 

1.  The  Massachusetts  Convention  of  1853,     ....  19 

2.  General  Principles  determining  what  Committees  shall 

be  appointed, 22 

3.  The  Committee  of  the  Whole, 25 

4.  Hearings, 26 

V.     Petitions  and  Remonstrances, 26 

VI.    The  Regulation  of  the  Lobby, 27 

Appendix, 29 

1.  Rules  and  Orders  of  the  Massachusetts  Convention  of  1853,     .  29 

2.  Selected  Portions  of  the  Rules  of  Procedure  of  the  Michigan 

Convention  of  1907,  the  Ohio  Convention  of  1912  and 

the  New  York  Convention  of  1915,         .        .        .  34 

3.  Standing  Committees  of  the  Michigan  Convention  of  1907,  the 

Ohio  Convention  of  1912  and  the  New  York  Conven- 
tion of  1915, 46 

Bibliography, .  49 


THE   PROCEDURE   OF   CONSTITUTIONAL 
CONVENTIONS. 


I.    Organization  of  the  Convention. 

The  act  of  April  3,  1916,  under  which  the  Convention  is  held, 
provides  that  the  persons  elected  as  delegates  to  the  Convention 
shall  assemble  in  the  State  House,  Boston,  on  June  6,  1917.  This 
act,  like  those  of  1820  and  1852,  is  defective  in  that  it  does  not 
designate  the  hour  of  meeting.  The  Convention  of  1820  met  at 
ten  o'clock  in  the  morning,  while  that  of  1853  met  at  noon.  In 
the  absence  of  any  express  provision,  the  latter  hour  seems  to 
be  the  appropriate  time.  The  Convention  shall  be  the  judge  of 
the  returns  and  election  of  its  members,  and  one  hundred  and 
sixty-one  of  the  persons  elected  shall  constitute  a  quorum  for 
the  transaction  of  business.  The  act  further  provides,  "They 
shall  be  called  to  order  by  the  Governor  and  shall  proceed  to 
organize  themselves  in  Convention  by  choosing  a  president  and 
such  other  officers  and  such  committees  as  they  may  deem 
expedient,  and  by  establishing  rules  of  procedure." 

From  the  foregoing  recital  it  is  apparent  that  when  the  Con- 
vention assembles  on  June  6,  it  will  find  itself  provided  with  a 
temporary  presiding  officer  in  the  person  of  His  Excellency  the 
Governor.  Under  his  guidance  it  should  proceed  at  once  to 
form  its  permanent  organization.  The  first  step  in  this  process 
is  the  ascertainment  of  the  presence  of  a  quorum,  for  without  a 
quorum  it  can  transact  no  business.  As  a  means  of  ascertaining 
this  fact  it  would  be  appropriate  for  the  Secretary  of  the  Com- 
monwealth to  be  in  attendance  and  to  call  the  names  of  the 
delegates  from  a  roll  made  up  from  the  returns  filed  in  his  office. 
Upon  reporting  to  the  Governor  the  presence  of  a  quorum,  the 
delegates  should  quahfy  for  their  duties  by  taking  an  oath  of 
office.  There  has  been  some  question  in  the  minds  of  many 
persons  as  to  whether  the  delegates  to  a  constitutional  conven- 
tion can  with  propriety  take  the  usual  oaths  of  office.     It  has 


12 

been  argued  that  the  purpose  of  their  assembling  is  to  effect 
alterations  in  the  Constitution  of  the  Commonwealth  and  hence 
that  an  oath  to  support  that  instrument  would  be  incongruous 
and  inconsistent  with  this  purpose.  However  that  may  be,  it 
cannot  be  questioned  that  they  are  bound  to  support  the  Con- 
stitution of  the  United  States,  and  there  is  nothing  in  their  duties 
which  is  incompatible  with  the  allegiance  which  they  owe  to  the 
Federal  Government.  It  seems  clear  also  that  they  are  equally 
bound  to  support  and  defend  the  Constitution  of  the  Common- 
wealth. The  Convention  which  will  assemble  on  June  6  is  not 
empowered  to  make  any  alteration  in  the  Constitution  on  its 
own  authority.  It  is  only  empowered  to  recommend  changes  to 
the  people,  and  such  changes  become  effective  only  when  ratified 
by  the  people.  It  may  be  that  none  of  its  recommendations  will 
be  adopted,  in  which  case  the  present  Constitution  remains  the 
fundamental  law  of  the  Commonwealth.  Or  if  the  changes 
recommended  are  adopted,  the  present  Constitution  still  re- 
mains the  fundamental  law  until  there  has  been  an  actual  adop- 
tion of  the  changes  proposed,  and  every  citizen  of  the  Common- 
wealth is  legally  bound  to  observe  the  law  as  it  is  until  it  has 
been  lawfully  altered.  The  whole  matter  is  made  clear  if  it  be 
recognized  that  the  assembling  of  the  Convention  not  only  does 
not  dissolve  the  frame  of  government  of  the  Commonwealth, 
but  that  it  makes  no  change  in  it  whatever.  If  the  labors  of 
the  Convention  shall  ultimately  produce  alterations  in  the  Con- 
stitution, that  result  will  not  occur  until  the  people  have  acted 
by  means  of  an  election.  Meanwhile  the  fundamental  law  of 
the  State  remains  the  fundamental  law,  which  the  members  of 
the  Convention  should  take  an  oath  to  defend  and  support. 

Entirely  apart  from  the  reason  of  the  thing,  the  Constitution 
of  ^Massachusetts,  in  Article  VI  of  the  Amendments,  contains 
the  following  mandatory  provisions:  — 

Art.  6.  Instead  of  the  oath  of  allegiance  prescribed  by  the  constitu- 
tion, the  following  oath  shall  be  taken  and  subscribed  by  every  person 
chosen  or  appointed  to  any  office,  civil  or  military  under  the  govern- 
ment of  this  Commonwealth,  before  he  shall  enter  on  the  duties  of  his 
ofl5ce,  to  wit: 

"  I,  A.  B.  do  solemnly  swear  that  I  will  bear  true  faith  and  allegiance 
to  the  Commonwealth  of  Massachusetts,  and  will  support  the  constitu- 
tion thereof.    So  help  me,  God." 


13 

Unless,  therefore,  it  can  be  shown  that  the  office  of  delegate  to 
the  Constitutional  Convention  is  not  an  office  "  under  the  govern- 
ment of  this  Commonwealth,"  there  is  an  express  constitutional 
requirement  that  an  oath  of  a  prescribed  form  shall  be  taken. ^ 

In  the  Convention  of  1820  and  in  the  Convention  of  1853, 
the  records  do  not  show  that  the  delegates  took  any  oath  of 
office  or  that  any  question  concerning  the  propriety  of  their 
action  was  raised.  In  recent  conventions  in  other  States,  such 
as  Michigan,  1907,  Ohio,  1912,  and  New  York,  1915,  the  dele- 
gates took  the  usual  oaths.  The  oath  taken  by  the  members  of 
the  Ohio  Convention,  which  is  substantially  the  same  as  that 
taken  in  Michigan  and  Xew  York,  was  as  follows:  — 

I  do  solemnh^  swear  that  I  will  support  the  Constitution  of  the  United 
States  and  the  Constitution  of  the  State  of  Ohio,  and  that  I  wiU  honestly 
and  faitlifully  and  to  the  l)est  of  my  abilit}^  perform  my  duties  as  a  mem- 
ber of  tlie  Convention  to  alter,  revise  or  amend  the  Constitution  of  the 
State  of  Ohio.    So  help  me,  God. 

It  will  probably  happen  that  a  few  members  cannot  be 
present  at  the  opening  session  of  the  Convention  and  take  the 
oath  of  office  at  that  time.  Such  members  could  qualify  at  a 
later  date. 

After  the  ascertainment  of  the  presence  of  a  quorum  duly 
qualified  by  the  usual  oaths  of  fidelity  to  the  Federal  and  the 
State  Constitutions,  the  Convention  should  proceed  to  form  its 
permanent  organization  by  the  election  of  a  president  and  a 
secretary.  In  this  connection  it  will  be  necessary  for  the  Con- 
vention to  determine  how  it  will  elect  its  officers,  —  whether  by 
a  secret  ballot  or  by  an  open  vote  on  a  roll  call.  The  first 
method  was  followed  in  the  Massachusetts  Convention  of  1853 
and  is  still  employed  by  the  ^Massachusetts  Senate.  The  second 
method  was  used  in  the  Michigan  Convention  of  1907,  the 
Ohio  Convention  of  1912  and  the  New  York  Convention  of 
1915.  It  is  also  the  mode  of  election  used  by  the  Federal 
House  of  Representatives  in  its  choice  of  a  Speaker. 

In  order  to  facilitate  the  work  of  the  Convention,  provision 
should  at   once   be   made  for  the   selection  of  three  commit- 

1  The  Attorney-General  ruled,  "  with  some  hesitation,"  that  a  delegate  to  the  Convention  is 
not  an  officer  "under  the  government  of  this  Commonwealth."  See  House  Document  No. 
1711  (1917).    The  Convention  nevertheless  voted  that  its  members  take  an  oath  of  office. 


14 

tees.  There  should  he  a  Committee  on  Permanent  Organiza- 
tion, which  should  recommend  to  the  Convention  such  an  or- 
ganization and  list  of  officers  as  are  needed  for  its  work.  This 
function  is  of  a  temporary  nature,  and  when  it  has  been  per- 
formed the  committee  could  be  discharged.  There  should  be  a 
Committee  on  Credentials  and  Elections,  which  should  be  a 
standing  committee.  To  it  should  be  referred  for  verification 
the  credentials  of  all  persons  claiming  seats  as  delegates  to  the 
Convention,  and  it  should  also  take  jurisdiction  over  the  sub- 
ject of  disputed  elections.  In  many  bodies  these  two  subjects 
are  assigned  to  different  committees,  but  they  are  so  closely 
allied  that  the  work  of  the  Convention  would  be  expedited  if 
they  were  placed  under  the  jurisdiction  of  the  same  committee. 
The  third  committee,  which  should  be  selected  at  once  in  order 
that  it  may  make  an  early  report,  is  the  Committee  on  Rules. 
Pending  the  adoption  of  a  permanent  set  of  rules,  the  Conven- 
tion would  perhaps  find  it  advisable  to  adopt  either  the  rules  of 
the  Convention  of  1853,  or  the  Rules  of  the  present  House  of 
Representatives  of  Massachusetts  so  far  as  applicable. 

II.    The  Nature   of  the  Constitutional  Convention  as 

AFFECTING   ITS   PROCEDURE. 

The  superficial  resemblances  between  a  constitutional  conven- 
tion and  a  legislative  body  are  so  numerous  that  the  features" 
which  distinguish  the  two  are  often  overlooked.  It  is  important, 
however,  that  their  distinctive  characteristics  should  be  noted, 
for  they  have  an  important  bearing  on  the  nature  of  the  rules 
to  be  adopted.  A  legislature  is  avowedly  a  partisan  body. 
Much  of  its  work  has  to  do  with  the  peculiar  tenets  of  the  party 
groups  into  which  its  members  are  divided.  It  is  right  that  the 
party  character  of  the  legislature  should  be  reflected  in  its  rules, 
which  are  not  merely  parliamentary  regulations  for  the  govern- 
ment of  a  public  meeting,  but  are  the  instrument  by  which  the 
majority  party  is  enabled  to  put  through  its  program  and  fulfill, 
so  far  as  it  is  disposed  to  do  so,  its  pre-election  pledges  to  the 
people.  The  rules  are  the  means  by  which  the  majority  party 
makes  its  responsibility  effective.  In  a  constitutional  conven- 
tion party  lines  are  likely  to  be  less  sharply  drawn.    To  be  sure 


15 

they  are  seldom  entirely  absent,  and  in  some  conventions,  nota- 
bly the  New  York  Convention  of  1915,  they  are  as  conspicuous 
as  in  any  legislative  body.  But  on  the  other  hand,  constitu- 
tional conventions  are  sometimes  chosen  without  party  desig- 
nations, which  tends  to  keep  party  affiliations  in  the  background, 
and  the  very  nature  of  the  questions  which  constitutional  con- 
ventions are  called  to  consider  makes  party  alignment  a  matter 
of  subordinate  importance.  Such  division  as  there  is  among  the 
delegates  is  more  likely  to  be  between  the  advocates  and  the 
opponents  of  some  proposed  change  in  the  Constitution,  —  and 
this  not  always  the  most  important  one  that  the  Convention  is 
to  consider. 

A  constitutional  convention  differs  also  from  a  legislative  body 
in  the  fact  that  even  more  than  the  latter  it  is  a  deliberative  body. 
Both,  to  be  sure,  are  deliberative  bodies.  Both  seek  to  obtain 
the  best  results  by  discussion.  But  in  the  case  of  a  constitu- 
tional convention  full  and  free  discussion  is  far  more  necessary 
than  in  a  legislature.  If  there  is  any  assembly  in  which  there 
should  be  unlimited  debate,  it  is  a  constitutional  convention. 
It  is  dealing  with  the  rules  of  law  which  are  the  canons  regulat- 
ing the  action  of  all  the  branches  of  the  State  machinery. 
Many  of  these  rules  are  attempts  to  formulate  fundamental 
political  principles.  Furthermore,  the  results  of  the  discussion  of 
them  are  to  be  embodied  in  an  instrument  which  is  not  easily 
changed.  Hence  the  necessity  of  encouraging  free  discussion. 
But  on  the  other  hand,  it  is  obvious  that  in  a  body  of  more 
than  three  hundred  members  there  must  be  some  restrictions. 
Even  in  a  constitutional  convention,  discussion  must  ultimately 
give  way  to  action.  The  rules  adopted  should,  however,  recog- 
nize the  desirability  of  a  freer  and  a  more  extended  discussion 
than  is  reasonable  in  a  legislature,  and  the  conditions  under 
which  the  previous  question  may  be  ordered  should  be  carefully 
considered. 

III.    Subject-matter  of  the  Rules. 

The  rules  of  order  adopted  by  constitutional  conventions  may 
be  arranged  in  three  groups  with  reference  to  the  purposes 
which  they  are  designed  to  accomplish. 

1.  The  rules  generally  set  forth  the  names    of    the    officers 


16 

which  are  deemed  necessary,  fix  the  method  of  their  appoint- 
ment, and  prescribe  their  duties.  The  Act  under  which  the 
Massachusetts  Convention  of  1917  will  assemble  provides  that 
the  delegates  shall  choose  "a  President  and  such  other  officers 
and  such  committees  as  they  may  deem  expedient."  After  the 
election  of  its  President,  therefore,  the  Convention  has  a  free 
hand  in  the  completion  of  its  organization. 

2,  The  rules  generally  prescribe  what  standing  committees 
are  to  be  established  and  how  they  are  to  be  chosen.  The  Mas- 
sachusetts Convention  of  1853  followed  a  different  procedure. 
On  the  opening  day  it  ordered  the  appointment  of  a  committee 
of  one  from  each  county  "to  consider  and  to  report  as  to  the 
best  mode  of  proceeding  to  the  revision  of  the  Constitution  of 
the  Commonwealth."  Two  days  later  this  committee  reported 
a  series  of  resolutions  providing  for  the  appointment  of  fifteen 
standing  committees.  The  Committee  on  Rules  did  not  make 
its  report  submitting  a  code  of  rules  until  the  day  after  the 
establishment  of  the  standing  committees.  In  the  Michigan 
Convention  of  1907  the  Committee  on  Permanent  Organization 
and  Order  of  Business  recommended  in  its  report  a  list  of  standing 
committees,  and  this  list  was  adopted  seven  days  before  the  rules 
were  adopted.  ^Yhether  the  standing  committees  are  provided 
for  in  the  rules  or  by  a  separate  vote  is  perhaps  a  matter  of  in- 
difference; but  since  the  rules  always  make  provision  for  the 
President  and  other  officers  of  the  Convention,  it  would  seem 
logical  that  they  should  also  designate  what  standing  commit- 
tees shall  be  established  and  how  they  shall  be  appointed. 

3.  The  rules  should  make  such  specific  provision  as  to  pro- 
cedure as  will  best  facilitate  the  work  of  the  Convention.  Here 
again  it  is  necessary  to  note  that  a  constitutional  convention 
differs  from  a  legislative  body.  The  various  measures  which  a 
legislature  considers  are  almost  entirely  independent  of  each 
other.  Any  one  of  them  may  usually  be  considered  and  acted 
upon  with  little  regard  for  any  other  measure  which  has  been 
introduced.  In  a  constitutional  convention,  however,  all  the 
proposals  which  are  adopted  must  find  a  place  as  part  of  one 
instrument.  Hence,  when  they  are  under  consideration,  their  rela- 
tion to  each  other  and  to  existing  provisions  of  the  Constitution 
must  be  taken  into  account.     This  makes  it  necessarv  that  all 


17 

proposed  amendments  should  be  introduced  as  early  in  the  ses- 
sion as  possible,  so  that  so  far  as  may  be  the  Convention  may 
form  some  conception  of  the  propositions  as  a  whole.  From  the 
standpoint  of  the  public  also  it  is  desirable  that  all  proposals  of 
amendment  should  be  introduced  as  early  as  possible,  in  order 
that  persons  and  organizations  interested  may  have  opportunity 
to  inform  themselves  and  to  present  their  \dews  to  the  Conven- 
tion. It  may  be  thought  that  members  will  need  no  spur  to  the 
early  introduction  of  propositions,  which  w^ould  thus  stand  a 
better  chance  of  full  consideration.  Nevertheless  the  Ohio  Con- 
vention of  1912  made  the  introduction  of  measures  after  the 
first  two  weeks  more  difficult.  In  the  New  York  Convention  of 
1915  it  was  found  that  at  the  end  of  the  first  month  of  the  ses- 
sion there  was  little  business  pending  before  the  committees, 
and  a  rule  was  then  adopted  that  after  June  11  (i.e.,  about  a 
month  later)  no  proposals  for  amendment  could  be  introduced 
by  individual  delegates,  but  only  by  committees.  This  action 
was  taken  with  the  avowed  object  of  hastening  the  introduction 
of  proposed  amendments. 

An  interesting  de\ace  was  adopted  by  the  Michigan  Conven- 
tion of  1907.  Pro\asion  was  made  for  stated  weekly  conferences 
of  the  chairmen  of  the  standing  committees  presided  over  by  the 
President  of  the  Convention.  In  this  way  the  various  commit- 
tees were  kept  informed  of  the  progress  of  the  work  of  each,  and 
the  business  of  the  Convention  was  much  facilitated.  If  a  con- 
vention is  not  organized  on  party  lines,  this  group  of  chairmen 
might  well  serve  as  the  Committee  on  Rules.  In  a  body  organ- 
ized on  party  lines  that  arrangement  would  be  inequitable,  for 
the  minority  would  thus  be  deprived  of  all  representation. 
Whether  a  Committee  on  Rules  made  up  in  this  way  would  be 
feasible  would  depend  also  on  the  number  of  committees  ap- 
pointed. A  committee  made  up  of  twenty  committee  chairmen 
might  be  unworkable  because  of  its  size.  If  it  should  be 
thought  desirable  that  the  Committee  on  Rules  should  be  con- 
stituted in  this  way,  the  Committee  on  Permanent  Organization 
should  be  asked  to  submit  a  list  of  standing  committees  as 
early  as  possible  in  order  that  their  chairmen,  if  not  their  entire 
membership,  might  be  appointed  at  once. 

The  rules  should  also  provide  a  method  whereby  the  Conven- 


18 

tion  can  control  its  committees.  There  is  perhaps  not  so  much 
danger  as  there  is  in  legislative  bodies  that  measures  will  die  in 
committee  either  through  the  inactivity  or  the  hostility  of  the 
group  to  which  they  have  been  referred,  but  it  is  well  for  the 
Con\ention  to  guard  against  that  contingency.  The  Ohio  Con- 
vention of  1912  met  the  situation  in  this  way:  — 

Rule  82.  Any  time  after  one  week  from  the  time  when  the  Conven- 
tion shall  have  committed  any  proposal  to  any  committee,  a  report  thereon 
in  the  meantime  not  having  been  made  by  said  committee,  the  author  of 
such  proposal  may,  when  no  other  business  is  pending  and  in  any  order 
of  business,  demand  that  such  proposal  be  reported  back  to  the  Conven- 
tion; and  such  demand  when  so  made  shall  be  deemed  the  action  of  the 
Convention,  and  the  proposal  is  at  once  before  the  Convention  subject  to 
all  i-ules  of  procedure  as  before ;  provided,  however,  that  this  shall  not  apply 
to  a  member  whose  proposal  has  passed  its  second  reading  and  has  been 
referred.  The  Convention  by  a  majority  vote  may  demand  forthwith 
the  report  of  any  proposal  that  has  been  committed  to  any  conamittee. 

Not  only  should  the  Convention  prevent  its  committees  from 
stifling  measures  submitted  to  them,  but  it  should  see  that  the 
men  who  present  measures  for  consideration  have  a  fair  oppor- 
tunity to  present  the  argument  in  their  favor.  This  was  the 
purpose  of  the  following  rule  adopted  by  the  Michigan  Conven- 
tion of  1907:  — 

Rule  51.  All  standing  committees  before  reporting  adversely  on  any 
proposal  shall  notify  the  member  presenting  such  proposal  when  and 
where  he  may  meet  such  committee  to  explain  the  same;  such  notice  to  be 
given  by  mail  in  the  Convention  post  office  twenty-four  hours,  or  in  person, 
at  any  time  before  so  reporting. 

It  is  important  that  the  form  of  proposals  of  amendment 
should  receive  careful  attention.  In  the  Ohio  Convention  of 
1912  the  rules  required  that  "all  matters  intended  to  become  a 
part  of  the  revised  Constitution  shall  be  presented  by  a  member 
of  the  Convention  in  the  form  of  a  proposal,  and  shall  be  in 
writing  and  shall  be  printed  by  title,  number  and  author's  name 
in  the  Journal."  It  was  also  required  that  all  proposals  should 
be  introduced  in  triplicate  —  one  copy  to  be  for  the  use  of  the 
press  —  and  that  they  should  be  printed  and  distributed  to 
members  before  reference  to  a  committee.  The  New  York  Con- 
vention of  1915  provided  in  Rule  31  as  follows:  "The  title  of 


19 

each  proposition  for  constitutional  amendment  introduced  shall 
-state  concisely  its  subject-matter.  Matter  which  it  is  proposed 
to  strike  out  shall  be  in  brackets,  and  new  matter  shall  be 
underscored  and  when  printed  shall  be  in  italics."  The  Ohio 
Convention  also  forbade  any  amendment  to  a  proposal  of 
amendment  which  was  not  germane  to  the  subject-matter  of  the 
proposal.  An  abuse  common  in  legislative  bodies  was  thus 
prevented. 

IV.    The  Committees  of  the  Convention. 
1.     The  Massaclmsetts  Convention  of  1853. 

The  Convention  of  1853  on  its  opening  day  ordered  the  ap- 
pointment of  the  following  committees:  (1)  a  committee  of  five 
"to  correct,  examine  and  report  upon  the  credentials  of  mem- 
bers;" (2)  a  committee  of  one  from  each  county  "to  consider 
and  report  as  to  the  best  mode  of  proceeding  to  the  revision  of 
the  Constitution  of  the  Commonwealth;"  (3)  a  committee  of 
five  "to  report  rules  and  orders  for  the  regulation  of  the  Con- 
vention;" (4)  a  committee  of  seven  "to  take  into  consideration 
and  report  what  course  should  be  adopted  for  reporting  the 
proceedings  of  the  Convention  and  also  for  the  publication  of 
the  same;"  (5)  a  committee  of  elections  "consisting  of  seven 
members  to  consider  and  report  upon  the  qualifications  of  mem- 
bers of  the  Convention." 

The  next  day  the  Convention  voted  "that  a  committee  of 
five  be  appointed  to  consider  and  report  what  measures  it  is 
desirable  for  the  Convention  to  adopt  to  preserve  and  perpetu- 
ate its  records."  On  the  same  day  it  w^as  voted  "that  the  Sec- 
retary of  the  Commonwealth  be  requested  to  send  to  the  Con- 
vention the  credentials  of  the  members  thereof,  with  a  list  of  the 
members  and  that  they  be  referred,  when  received,  to  the  Com- 
mittee on  Elections."  On  the  third  day  the  committee  ap- 
pointed to  consider  and  report  upon  the  best  mode  of  proceed- 
ing to  the  revision  of  the  Constitution  reported  through  its 
chairman,  Henry  Wilson,  afterwards  Vice-President  of  the 
United  States,  the  following  resolutions :  — 

1.  Resolved,  That  so  much  of  the  Constitution  as  is  contained  in  the 
Preamble  and  Declaration  of  Rights,  be  referred  to  a  committee  of  thir- 
teen, to  take  into  consideration  the  expediency  of  making  any,  and  if  any, 
what  alterations  or  amendments,  and  to  report  thereon. 


20 

2.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Frame 
of  Government  and  the  General  Court,  in  section  1  of  chapter  1,  and  also 
so  much  as  relates  to  Settling  Elections  by  the  Legislature,  in  article  7  of 
section  3,  chapter  2,  be  referred  to  a  committee  of  thirteen,  to  take  into 
consideration  the  expediency  of  making  any,  and  if  any,  what  alterations 
or  amendments,  and  to  report  thereon. 

3.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Senate, 
be  referred  to  a  committee  of  twenty-one,  to  take  into  consideration  the 
expediency  of  making  any,  and  if  any,  what  alterations  or  amendments, 
and  to  report  thereon. 

4.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  House 
of  Representatives,  be  referred  to  a  committee  of  twenty-one,  to  take  into 
consideration  the  expediency  of  making  any,  and  if  any,  what  alterations 
or  amendments,  and  to  report  thereon. 

5.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Gov- 
ernor, in  section  1  of  chapter  2,  except  so  much  as  relates  to  the  Militia, 
in  section  10  of  said  chapter,  and  section  9  of  said  chapter,  concerning 
appointments,  be  referred  to  a  committee  of  thirteen,  to  take  into  con- 
sideration the  expediency  of  making  any,  and  if  any,  what  alterations  or 
amendments,  and  to  report  thereon. 

6.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Militia, 
in  section  1  of  chapter  2,  article  10,  be  referred  to  a  committee  of  thirteen, 
to  take  into  consideration  the  expediency  of  making  any,  and  if  any,  what 
alterations  or  amendments,  and  to  report  thereon. 

7.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Lieu- 
tenant-Governor, be  referred  to  a  conamittee  of  thirteen,  to  take  into  con- 
sideration the  expediency  of  making  any,  and  if  any,  what  alterations  or 
amendments,  and  to  report  thereon. 

8.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Council, 
in  sections  2,  3  and  4  of  chapter  2,  except  article  7  of  section  3,  be  referred 
to  a  committee  of  thirteen,  to  take  into  consideration  the  expediency  of 
making  any,  and  if  any,  what  alterations  or  amendments,  and  to  report 
thereon. 

9.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Secre- 
tary and  Treasurer,  in  section  4  of  chapter  2,  and  the  Attorney-General, 
Solicitor-General,  Sheriffs,  Coroners,  Registers  of  Probate  and  Notaries 
Public,  being  article  9  of  section  1,  chapter  2,  be  referred  to  a  committee 
of  thirteen,  to  take  into  consideration  the  expediency  of  making  an)-,  and 
if  any,  what  alterations  or  amendments,  and  to  report  thereon. 

10.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Judi- 
ciary Power,  chapter  3,  and  the  two  last  clauses  of  article  13,  section  1, 
chapter  2,  relating  to  Salaries,  be  referred  to  a  committee  of  thirteen,  to 
take  into  consideration  the  expediency  of  making  any,  and  if  any,  what 
alterations  or  amendments,  and  to  report  thereon. 

11.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Uni- 
versity of  Cambridge,  being  chapter  5,  section  2,  be  referred  to  a  committee 


21 

of  thirteen,  to  take  into  consideration  the  expediency  of  making  any,  and 
if  any,  what  alterations  or  amendments,  and  to  report  thereon. 

12.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  En- 
couragement of  Literature,  being  chapter  5,  section  2,  be  referred  to  a 
committee  of  thirteen,  to  take  into  consideration  the  expediency  of  making 
any,  and  if  any,  what  alterations  or  amendments,  and  to  report  thereon. 

13.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  Oaths  and 
Subscriptions,  IncompatibiUty  of,  and  Exclusion  from  Office,  Pecuniary 
Quahfications,  Commissions,  Writs,  Confirmation  of  Laws,  Habeas  Cor- 
pus, and  the  Enacting  Style,  including  the  eight  first  articles  in  chapter  6, 
be  referred  to  a  committee  of  thirteen,  to  take  into  consideration  the 
expediencj^  of  making  any,  and  if  any,  what  alterations  or  amendments, 
and  to  report  thereon. 

14.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  the  Quali- 
fications of  Voters,  being  article  9  of  chapter  6,  be  referred  to  a  committee 
of  thirteen,  to  take  into  consideration  the  expediency  of  making  any, 
and  if  any,  what  alterations  or  amendments,  and  to  report  thereon. 

15.  Resolved,  That  so  much  of  the  Constitution  as  relates  to  Amend- 
ments of  the  Constitution  and  Enrolment,  being  articles  10  and  11  of 
chapter  6,  be  referred  to  a  committee  of  thirteen,  to  take  into  considera- 
tion the  expediency  of  making  any,  and  if  any,  what  alterations  or  amend- 
ments, and  to  report  thereon. 

On  the  fourth  day  the  Committee  on  Rules  and  Orders  re- 
ported a  set  of  rules,  which,  after  several  minor  amendments, 
were  adopted.    A  copy  of  these  rules  is  appended. 

The  list  of  committees  as  adopted  by  the  Convention  on  the 
third  day  does  not,  however,  comprise  all  the  standing  commit- 
tees which  the  Convention  authorized.  From  time  to  time  as 
topics  came  before  the  Convention  wJiich  did  not  seem  to 
belong  to  any  of  the  committees  already  authorized,  new  com- 
mittees were  ordered.  Thus  there  was  a  special  committee  on 
.Vacancies,  another  on  the  Adoption  of  the  Principle  of  Plurality 
in  Elections,  another  on  the  Loan  of  the  Credit  of  the  State,  an- 
other on  Banking  Corporations,  another  on  General  Corpora- 
tions and  one  on  the  Order  of  Business.  Finally  the  authority 
of  the  fifteen  committees  originally  authorized  was  extended  to 
cover  any  proposition  that  they  might  deem  compatible  with 
the  objects  and  purposes  of  their  appointment. 


22 


2.  General  Principles  determining  the  Committees  of  a  Con- 
stitutional Convention. 

In  determining  how  many  and  what  committees  should  be 
a])pointed  by  the  Convention,  the  following  considerations  are 
important. 

First,  the  number  of  committees  depends  somewhat  upon  the 
size  of  the  body  which  they  serve.  In  general,  it  may  be  said 
that  the  larger  the  body  is,  the  more  dependent  it  is  upon  its 
committees  and  the  more  necessary  it  is  to  subdivide  its  work 
among  these  smaller  groups.  The  Massachusetts  Convention  of 
1917  is  smaller  by  almost  a  hundred  members  than  the  Con- 
vention of  1853,  but  it  still  has  320  members;  and  when  this 
number  is  compared  with  the  Michigan  Convention  of  96  mem- 
bers, the  Ohio  Convention  of  119  members,  and  the  New  York 
Convention  of  168  members,  it  will  be  realized  that  it  is  one  of 
the  largest  bodies  of  the  kind  ever  assembled  in  this  country. 
It  is  obvious,  therefore,  that  general  discussion  and  general 
deliberation  will  depend  for  their  success  upon  the  thorough 
digesting  of  the  business  of  the  Convention  by  preliminary  con- 
sideration in  committees. 

In  the  second  place  it  is  desirable  that  every  member  of  the 
Convention  should  be  assigned  to  some  committee.  This  is 
beneficial  both  to  the  individual  member  and  to  the  Conven- 
tion as  a  whole.  In  a  body  as  large  as  the  Massachusetts 
Convention  this  entails  three  results.  First,  the  number  of 
committees  must  be  so  large  that  some  of  them  will  have  little 
or  nothing  to  do.  But  the  mere  fact  that  a  committee  never 
makes  a  report  to  the  Convention  should  not  be  held  to  indicate 
that  it  has  been  useless.  Second,  the  committees  for  the  most 
part  must  have  at  least  fifteen  members,  which  in  the  opinion 
of  many  experienced  parliamentarians  is  an  unwieldy  number. 
Complaint  was  made  in  the  Ohio  Convention  that  its  com- 
mittees of  seventeen  members  were  so  large  that  it  was  difficult 
to  obtain  the  presence  of  a  quorum.  Third,  the  existence  of  a 
large  number  of  committees  creates  the  danger  that  subjects 
which  ought  to  be  considered  as  a  unit  by  one  committee  will 
be  unduly  subdivided  and  distributed  among  several  commit- 


23 

tees.  This  objection  has  been  raised  to  the  system  of  com- 
mittees adopted  by  the  New  York  Convention  of  1915. 

Again  the  number  of  committees  will  depend  somewhat  upon 
the  extent  of  the  revision  which  the  Convention  undertakes. 
The  Convention  of  1853  evidently  intended  at  the  outset  care- 
fully to  scrutinize  all  parts  of  the  Constitution,  and,  as  has 
already  been  indicated,  they  began  their  work  by  providing  a 
series  of  fifteen  committees,  to  one  or  the  other  of  which  every 
section  of  the  Constitution  was  assigned  for  consideration. 
Even  after  having  made  this  extensive  provision,  however,  the 
Convention  found  it  necessary  to  provide  some  special  com- 
mittees for  particular  subjects  such  as  Corporations,  the  Loan 
of  the  Credit  of  the  State,  etc.  The  conventions  recently  held 
in  New  York,  Ohio  and  Michigan  have  followed  the  principle  of 
choosing  committees  to  deal  with  particular  subjects  rather  than 
the  principle  followed  by  the  INIassachusetts  Convention  of  1853 
of  assigning  every  part  of  the  Constitution  to  some  committee. 
For  instance,  in  the  Ohio  Convention  of  1912  are  found  com- 
mittees on  Agriculture,  Banks  and  Banking,  County  and  Town- 
ship Organizations,  Education,  Equal  Suffrage  and  Elective 
Franchise,  Good  Roads,  Initiative  and  Referendum,  Liquor 
Traffic,  Short  Ballot  and  Taxation.  Similar  committees  appear 
in  both  the  Michigan  and  New  York  Conventions.  A  list  of 
the  committees  appointed  in  these  three  Conventions  is  ap- 
pended hereto. 

Li  the  fourth  place,  there  are  some  committees  which  are 
necessary  to  the  smooth  working  of  the  machinery  of  any  delib- 
erative body.  Among  these  may  be  mentioned  such  committees 
as  the  Committee  on  Credentials,  on  Elections,  on  Rules,  on 
Contingent  Expenses  and  on  Printing. 

Besides  the  two  great  groups  of  committees  having  to  do 
respectively  with  the  operation  of  the  machinery  of  the  Conven- 
tion and  with  the  merits  of  the  proposals  for  amendment  which 
are  introduced  into  the  Convention,  there  is  another  committee 
which  stands  in  a  class  by  itself  and  is  of  peculiar  importance  in 
a  Constitutional  Convention.  This  is  the  committee  known  in 
the  Federal  Convention  of  1787  as  the  Committee  on  Style,  and 
in  some  more  recent  State  conventions  as  the  Committee  on 
Arrangement,  or  the  Committee  on  Engrossment,  or  the  Com- 


24 

mittee  on  Arrangement  and  Phraseology.  It  is  obvious  that 
the  phraseology  of  constitutional  provisions  is  a  matter  of  para- 
mount importance.  If  a  statute  is  awkwardly  or  carelessly 
phrased  and  is  found  in  operation  not  to  express  the  intent  of 
its  framers,  it  can  easily  be  amended;  but  mistakes  in  the 
framing  of  constitutional  provisions  are  difficult  to  rectify,  and 
a  convention  cannot  be  too  careful  in  the  phrasing  of  the 
amendments  which  it  submits  to  the  people.  The  Michigan 
Constitution  of  1908  has  been  very  much  praised  because  of  its 
careful  drafting,  and  this  may  be  said  to  be  entirely  due  to  the 
work  of  its  Committee  on  Arrangement  and  Phraseology.  In 
the  Michigan  Convention  of  1907-08  a  proposal  when  intro- 
duced by  a  member  was  read  and  referred  to  its  appropriate 
committee.  On  being  reported  to  the  Convention,  it  was  dis- 
cussed in  Committee  of  the  Whole  and  then  referred  to  the 
Committee  on  Arrangement  and  Phraseology.  When  reported 
by  that  Committee  it  was  put  upon  its  second  reading  and  was 
then  voted  upon.  If  it  was  adopted,  it  was  again  referred  to 
the  Committee  on  Arrangement  and  Phraseology.  When  all  of 
the  proposals  adopted  by  the  Convention  had  been  thus  acted 
upon,  the  Convention  took  a  recess  for  twelve  days,  and  in  that 
interval  the  Committee  on  Arrangement  and  Phraseology  ar- 
ranged in  systematic  form  the  proposals  which  the  Convention 
had  adopted,  and  upon  the  reconvening  of  the  Convention,  the 
Committee  laid  before  it  a  complete  revision  of  the  Constitution. 
This  revision  was  then  considered  by  sections  in  Committee  of 
the  Whole  and  finally  reported  to  the  Convention,  where  it  was 
put  upon  its  third  reading  and  voted  upon  both  by  articles  and 
as  a  whole.  By  this  procedure  there  were  four  different  oppor- 
tunities for  the  discussion  and  amendment  of  every  proposition, 
and  before  final  adoption  the  Convention  had  an  opportunity 
to  consider  a  complete  draft  of  the  revised  Constitution.  This 
procedure  seems  cumbersome,  but  the  phrasing  of  proposed 
amendments  cannot  be  made  the  subject  of  too  much  care. 
Furthermore  this  full  discussion  does  much  to  reconcile  con- 
flicting views.  While  there  was  much  difference  of  opinion  as  to 
the  several  subjects  discussed  in  the  Michigan  Convention,  it  is 
interesting  to  note  that  the  final  draft  of  the  Constitution  was 
adopted  by  a  unanimous  vote. 


25 


3.  Committee  of  the  Whole. 
A  parliamentary  device  quite  commonly  employed  both  by 
legislatures  and  by  constitutional  conventions  is  the  Committee 
of  the  Whole.  The  rules  of  the  Massachusetts  Convention  of 
1853,  as  well  as  the  rules  of  recent  conventions  in  other  States, 
provide  for  it,  and  it  is  found  in  the  rules  of  both  houses  of  Con- 
gress, as  well  as  in  those  of  most  of  the  State  legislatures.  For 
some  cause  for  which  no  satisfactory  explanation  has  been  dis- 
covered, provision  for  a  Committee  of  the  Whole  was  dropped 
by  the  INIassachusetts  Legislature  some  years  ago,  although  the 
rules  still  provide  for  it  and  some  attempts  to  restore  it  have 
been  made.  It  is  a  device  which  has  several  distinct  advantages, 
which  may  be  summarized  as  follows :  — 

1.  It  permits  discussion  by  practically  the  whole  body  of 
which  it  is  in  name  a  committee  without  the  formality  and  tech- 
nical procedure  which  the  rules  impose  upon  the  body  as  a 
whole.  It  is  thought  that  much  time  is  thus  saved  by  obviating 
wrangling  about  the  rules  and  points  of  order. 

2.  It  enables  a  body  to  determine  by  a  preliminary  discussion 
of  the  broad  outlines  of  a  project  whether  it  is  sufficiently  im- 
pressed in  its  favor  to  be  willing  to  give  it  further  consideration. 
The  working  of  the  Committee  of  the  Whole  in  this  respect  was 
thus  explained  by  the  President  of  the  New  Hampshire  Consti- 
tutional Convention  of  1912:  — 

In  the  Committee  of  the  Whole  there  is  no  yea  and  nay  vote,  and  the 
number  of  times  that  a  man  can  speak  upon  a  measure  is  not  limited,  and 
there  is  a  chance  for  full  and  free  debate.  Then  the  Committee  of  the 
Whole,  which  is  reaUy  the  Convention  sitting  with  a  different  presiding 
officer,  —  a  man  called  Chairman  of  the  Conmiittee,  instead  of  President 
of  the  Convention,  —  can  decide  whether  the  subject-matter  which  they 
have  under  consideration  is  something  they  want  to  support  or  oppose. 
If  it  is  something  that  the  full  membership,  having  discussed  it  in  the 
Committee  of  the  WTiole,  decide  that  they  do  not  want  it  to  go  any  further, 
then  the  Committee  of  the  Whole  recommends  back  to  the  Convention 
the  defeat  of  the  measure.  If  it  is  something  which  they  think  should  go 
forward,  then  it  is  referred  back  to  the  Convention,  usually  with  the 
recommendation  that  it  go  to  the  proper  standing  committee,  who  will 
then  reconsider  it,  in  the  hght  of  the  fact  that  the  Convention  has  favored 
it  in  the  Committee  of  the  Whole,  with  the  idea  of  putting  it  in  the  proper 
shape,  so  when  it  comes  back  from  that  committee  it  can  come  back  in 
proper  shape  with  the  recommendation  of  both  the  Committee  of  the 
Whole  and  the  Standing  Committee. 


26 

3.  It  permits  the  public  discussion  of  amendments.  In  the 
history  of  legislative  bodies  it  has  been  found  that  the  most 
reprehensible  legislation  has  often  been  adopted  by  means  of 
amendments  recommended  by  a  small  committee  and  adopted 
by  the  legislature  without  discussion  and  without  a  full  under- 
standing of  their  meaning  and  effect.  This  is  rendered  difficult 
if  not  impossible  if  measures  are  considered  in  a  Committee  of 
the  Whole  and  there  whipped  into  shape  for  final  enactment. 
So  great  was  the  confidence  of  the  New  York  Convention  of 
1915  in  the  eflScacy  of  this  method  of  procedure  that  the  rules 
not  only  provided  that  there  might  be  a  Committee  of  the 
^Yhole,  but  that  no  amendment  should  be  ordered  to  a  third 
reading  until  it  had  been  considered  in  Committee  of  the  ^Yhole. 
The  extent  to  which  this  Committee  has  been  made  use  of  in 
other  recent  Conventions  has  greatly  varied.  The  Ohio  Con- 
vention of  1912  made  slight  use  of  it,  but  the  Michigan  Conven- 
tion of  1907,  in  a  session  extending  over  72  days,  went  into  Com- 
mittee of  the  Whole  more  than  fifty  times. 

J^.  Hearings. 
The  rules  of  the  Convention  should  make  it  clear  that  its 
committees  are  empowered  to  hold  public  hearings.  In  all  the 
recent  conventions  in  other  States  this  has  been  a  prominent 
feature.  In  New  York,  particularly,  men  were  not  only  per- 
mitted to  appear  before  committees,  but  men  who  were  expert 
in  their  several  subjects,  either  through  official  experience  or  long 
study,  were  invited  to  appear.  Among  those  who  gave  the  com- 
mittees of  the  New  York  Convention  the  benefit  of  their  knowl- 
edge and  experience  were  Ex-President  Taft,  President  Lowell, 
President  Goodnow,  and  Representative  Fitzgerald,  chairman 
of  the  Committee  on  Appropriations  of  the  Federal  House  of 
Representatives. 

V.  Petitions  and  Remonstrances. 
A  question  which  should  receive  consideration  when  the  rules 
of  the  Convention  are  framed  is  the  definition  of  the  conditions 
under  which  petitions,  remonstrances  and  similar  communica- 
tions will  be  received.  In  the  Convention  of  1853  petitions 
could  be  presented  to  the  Convention  only  on  introduction  by 
a  delegate.    In  the  :\lichigan  Convention  of  1907,  Rule  38,  and 


27 

in  the  Ohio  Convention  of  1912,  Rule  83  required  in  identical 
words  that  "all  matters  intended  to  become  a  part  of  the 
revised  constitution  shall  be  presented  by  a  member  of  the 
Convention  in  the  form  of  a  proposal,"  but  apparently  there 
was  nothing  in  the  rules  to  prevent  the  reception  of  a  petition 
or  remonstrance  emanating  from  any  source  provided  it  did  not 
contain  matter  intended  to  become  a  part  of  the  revised  consti- 
tution. In  both  Conventions  the  first  item  on  the  daily  order 
of  business  was  the  presentation  of  petitions.  The  Xew  York 
Convention  of  1915  was  more  explicit  in  the  provisions  adopted 
concerning  petitions.     Rule  4  was  as  follows:  — 

Rule  4.  Petitions,  memorials,  remonstrances  and  any  other  papers 
addressed  to  the  Convention  shall  be  presented  by  the  President,  or  by 
any  member  in  his  place,  read  by  their  titles,  unless  otherwise  ordered,  and 
referred  to  the  proper  committee. 

In  Rule  3,  setting  forth  the  daily  order  of  business,  it  was 
provided  that  the  first  business  after  the  reading  and  correction 
of  the  Journal  should  be  the  "presentation  of  memorials. 
Under  which  head  shall  be  included  petitions,  remonstrances 
and  communications  from  individuals,  and  from  public  bodies." 

Should  the  Convention  deem  it  wise  to  require  all  petitions 
to  be  introduced  on  the  responsibility  of  a  delegate,  it  is  not 
probable  that  any  meritorious  proposition  would  fail  of  con- 
sideration for  lack  of  a  sponsor.  On  the  other  hand  it  could  be 
said  that  a  body  called  to  consider  the  revision  of  the  funda- 
mental law  of  the  State  and  whose  work  is  later  to  be  sub- 
mitted to  a  popular  vote  might  with  propriety  be  less  rigor- 
ous in  the  formalities  attending  the  introduction  of  petitions 
than  is  a  legislative  body. 

VI.    The  Regulation  of  the  Lobby. 

A  subject  which  has  been  regulated  by  many  legislative 
bodies  and  which  has  also  been  dealt  with  to  some  extent  by 
recent  constitutional  conventions  in  other  States  is  the  lobby. 
The  Ohio  Convention  of  1912  adopted  the  following  rule  bear- 
ing on  the  subject:  — 

Rule  105.  Any  person  who  desires  to  appear  before  anj'  of  the 
standing  or  select  committees  of  this  Convention  for  the  purpose  of 
presenting  arguments  for  or  against  any  proposition  committed  to  the 


28 

consideration  of  any  committee  of  the  Convention,  or  pending  before 
the  Convention  itself,  or  who  desires  to  present  arguments  to  any  mem- 
ber or  group  of  members  of  this  Convention  at  any  time  or  place,  shall 
first  register  his  or  her  name  and  address  with  the  secretary  of  this  Con- 
vention, together  with  all  information  as  to  the  capacity  in  which  he  or 
she  so  appears,  amount  of  compensation,  if  any,  received  for  such  service, 
and  by  whom  said  compensation  is  to  be  paid.  Citizens  who  desire  to 
present  arguments  to  members  in  their  own  counties,  may  register  their 
names  and  other  information  by  mail.  All  records  of  the  secretary  pro- 
vided for  under  this  rule  shall  be  open  to  the  pubUc. 

The  New  York  Convention  of  1915  also  adopted  a  rule  which 
touches  upon  the  subject  in  a  somewhat  remote  w^ay.  The  New 
York  Convention  provided  in  Rule  54  for  the  admission  of  cer- 
tain persons  to  the  floor  of  the  Convention  and  then  added:  — 

No  person  shall  be  entitled  to  the  privileges  of  the  floor  of  the  Conven- 
tion as  a  legislative  reporter  of  a  newspaper  who  is  interested  in  pending 
or  contemplated  constitutional  revision,  or  who  is  emplo3^ed  by,  or  re- 
ceives compensation  from,  any  corporation,  except  a  newspaper,  news 
or  press  association. 

IMany  legislative  bodies  have  found  it  advisable  to  require  the 
registration  of  legislative  counsel  and  to  make  other  regulations 
concerning  the  methods  by  which  their  individual  members  may 
be  approached  by  persons  W'ho  seek  to  influence  their  action. 
It  would  be  pertinent  for  the  Constitutional  Convention  to  con- 
sider how  far  it  is  desirable  for  it  to  adopt  similar  regulations. 


29 


Appendix. 


1.    RULES  AND  ORDERS  OF  THE  MASSACHUSETTS  CONSTI- 
TUTIONAL CONVENTION  OF  1853. 

Of  the  President. 

1.  The  President  shall  take  the  chair  every  day  at  the  hour  to  which 
the  Convention  shall  have  adjourned;  shall  call  the  members  to  order; 
and  on  the  appearance  of  a  quorum,  shall  cause  the  Journal  of  the  preceding 
day  to  be  read,  and  proceed  to  business. 

2.  He  shall  preserve  decorum  and  order;  may  speak  to  points  of  order 
in  preference  to  other  members;  and  shall  decide  all  questions  of  order, 
subject  to  an  appeal  to  the  Convention  on  motion  regularly  seconded;  and 
no  other  business  shall  be  in  order  till  the  question  on  the  appeal  shall 
have  been  decided. 

3.  He  shall  declare  all  votes;  but  if  any  member  doubts  a  vote,  the 
President  shall  order  a  return  of  the  number  voting  in  the  affirmative,  and 
in  the  negative,  without  any  further  debate  upon  the  question.  When  a 
vote  is  doubted,  the  members  for  or  against  the  question,  when  called  by 
the  President,  shall  rise  and  stand  uncovered  till  they  are  counted. 

4.  He  shall  rise  to  put  a  question,  or  to  address  the  Convention,  but 
may  read  sitting. 

5.  In  all  cases  the  President  may  vote. 

6.  When  the  Convention  shall  determine  to  go  into  Committee  of  the 
Whole,  the  President  shall  appoint  the  member  who  shall  take  the  chair. 

7.  On  all  questions  and  motions  whatsoever,  the  President  shall  take 
the  sense  of  the  Convention  by  yeas  and  nays,  provided  one-fifth  of  the 
members  present  shall  so  require.  When  the  yeas  and  naj^s  are  taken,  no 
members  shall  be  allowed  to  vote,  who  shall  have  entered  the  Convention 
after  the  caUing  of  the  roil  is  finished.  The  names  of  members  shall  be 
called  in  alphabetical  order. 

8.  He  shall  propound  all  questions,  in  the  order  in  which  they  are 
moved,  unless  the  subsequent  motion  be  previous  in  its  nature;  except 
that,  in  naming  sums  and  fixing  times,  the  largest  sum  and  the  longest 
time  shall  be  put  first. 

9.  After  a  motion  is  stated  or  read  by  the  President,  it  shall  be  deemed 
to  be  in  possession  of  the  Convention,  and  shall  be  disposed  of  by  vote  of 
the  Convention;  but  the  mover  may  withdraw  it  at  any  time  before  a 
decision  or  amendment,  except  a  motion  to  reconsider,  which  shall  not  be 


30 

withdrawn  after  the  time  has  elapsed  within  which  it  could  be  originally 
made. 

10.  WTien  a  question  is  under  debate  the  President  shall  receive  no 
motion,  but  to  adjourn,  to  lay  on  the  table,  for  the  previous  question,  to 
postpone  to  a  day  certain,  to  commit,  to  amend,  or  to  postpone  indefinitely; 
which  several  motions  shall  have  precedence  in  the  order  in  which  they 
stand  arranged. 

11.  He  shall  consider  a  motion  to  adjourn  as  always  in  order;  and  that 
motion,  and  the  motions  to  lay  on  the  table,  to  take  up  from  the  table, 
to  suspend  any  rule,  and  for  the  yeas  and  nays,  shall  be  decided  without 
debate. 

12.  He  shall  put  the  previous  question  in  the  following  form:  "Shall 
the  main  question  he  now  p^it  ?"  —  and  all  debate  upon  the  main  question 
shall  be  suspended  until  the  previous  question  shall  be  decided.  After  the 
adoption  of  the  previous  question,  the  sense  of  the  Convention  shall  forth- 
with be  taken  upon  amendments  reported  by  a  committee,  upon  pending 
amendments,  and  then  upon  the  main  question. 

13.  On  the  previous  question  no  member  shall  speak  more  than  once 
without  leave;  and  all  incidental  questions  of  order,  arising  after  a  motion 
is  made  for  the  previous  question,  shall  be  decided  without  debate,  ex- 
cepting on  appeal,  and  on  such  appeal,  no  member  shall  be  allowed  to 
speak  more  than  once  without  leave  of  the  House. 

14.  When  two  or  more  members  happen  to  rise  at  once,  the  President 
shall  name  the  member  who  is  first  to  speak. 

15.  All  committees  shall  be  appointed  and  announced  by  the  President, 
unless  otherwise  specially  directed  by  the  Convention. 

16.  The  President  shall  have  the  right  to  name  any  member  to  perform 
the  duties  of  the  Chair,  but  such  substitution  shall  not  extend  beyond  an 
adjournment. 

17.  The  President  shall  have  the  general  direction  of  the  hall  of  the 
Convention,  and  of  the  galleries.  No  person  excepting  members,  officers, 
and  attendants  of  the  Convention,  and  such  persons  as  may  be  invited 
by  the  Convention,  or  by  the  President,  shall  be  admitted  within  the  bar 
of  the  Convention.  The  chairman  of  each  Committee  of  the  Whole,  during 
the  sitting  of  such  committee,  shall  have  the  hke  power  of  preserving  order 
in  the  hall  and  in  the  galleries. 

Of  Absence  of  President. 

18.  In  case  the  President  shall  be  absent  at  the  hour  to  which  the  Con- 
vention was  adjourned,  the  Secretary  shall  call  the  Convention  to  order, 
and  shall  preside  until  a  President  jyro  tempore  shall  be  elected,  which  shall 
be  the  first  business  of  the  Convention. 


31 


Of  Members. 

19.  A  seat  shall  be  assigned  to  each  member  in  such  a  manner  as  the 
Convention  shall  determine,  which  shall  not  be  changed  without  leave  of 
the  President. 

20.  No  member  in  debate  shall  mention  a  member  then  present  by  his 
name,  but  may  describe  him  by  the  town  he  represents,  the  place  he  sits  in, 
or  such  other  designations  as  may  be  intelHgible  and  respectful. 

21.  Every  member  when  about  to  speak,  shall  rise  and  respectfully 
address  the  President,  shall  confine  himself  to  the  question  under  debate, 
and  avoid  personality,  and  shall  sit  down  when  he  has  finished.  No  mem- 
ber shall  speak  out  of  his  place  without  leave  af  the  President. 

22.  No  member  speaking  shall  be  interrupted  by  another,  but  by  rising 
up  to  call  to  order. 

23.  No  member  shall  speak  more  than  twice  on  one  question,  without 
first  obtaining  leave  of  the  Convention;  nor  more  than  once,  until  other 
members,  who  have  not  spoken,  shall  speak,  if  they  desire  it. 

Of  Reconsideration. 

24.  When  a  vote  has  passed,  it  shall  be  in  order  for  any  member  to 
move  for  a  reconsideration  thereof,  on  the  same  or  the  succeeding  day, 
and  such  motion  shall  be  placed  first  in  the  Orders  of  the  Day  for  the  day 
succeeding  that  on  which  the  motion  is  made:  a  motion  to  reconsider 
being  rejected  shall  not  be  renewed;  nor  shall  any  subject  be  a  second 
time  reconsidered:  provided,  however,  that  a  motion  to  reconsider  a  vote, 
upon  any  collateral  matter,  shall  not  remove  the  main  subject  under  con- 
sideration from  before  the  Convention,  but  shall  be  considered  at  the  time 
when  it  is  made. 

25.  No  member  shall  be  obUged  to  be  on  more  than  two  committees 
at  the  same  time,  nor  chairman  of  more  than  one. 

26.  No  member  shall  be  permitted  to  stand  up,  to  the  interruption  of 
another,  while  any  member  is  speaking,  or  to  pass  unnecessarily  between 
the  President  of  the  Convention  and  the  person  speaking;  nor  shall  any 
member  be  permitted  to  stand  in  the  alleys  during  the  session  of  the 
Convention. 

27.  Every  member  shall  keep  an  account  of  his  own  attendance  and 
travel,  and  deUver  the  same  to  the  committee  appointed  to  make  up  the 
pay  roll,  and  on  his  failure  so  to  do,  he  shall  be  omitted  from  the  roll;  and 
no  member  shall  receive  pay  for  any  weekday  on  which  he  has  not  actually 
attended,  except  in  case  of  sickness. 

28.  Every  member  who  shall  neglect  to  give  his  attendance  in  the  Con- 
vention for  more  than  six  days  after  the  session  commences,  shall,  on 
making  his  appearance  therein,  be  held  to  render  the  reason  of  such  neg- 
lect; and  in  case  the  reason  assigned  shall  be  deemed  by  the  Convention 
sufficient,  such  member  shall  be  entitled  to  receive  pay  for  his  travel,  and 


32 

not  otherwise;  and  no  member  shall  be  absent  more  than  two  claj-s, 
without  leave  of  the  Convention;  and  a  vote  of  leave  of  absence  shall  be 
inoperative,  unless  the  member  obtaining  it  shall  avail  himself  of  it  within 
five  days. 

29.  "When  any  member  shall  be  guilty  of  a  breach  of  either  of  the  Rules 
and  Orders  of  the  Convention,  he  maj^  be  required  by  the  Convention,  on 
motion,  to  make  satisfaction  therefor,  and  shall  not  be  allowed  to  vote, 
or  speak,  except  by  way  of  excuse,  till  he  has  done  so. 

30.  Every  member,  who  shall  be  in  the  Convention  when  a  question 
is  put,  shall  give  his  vote,  unless  the  Convention,  for  special  reasons,  shall 
excuse  him.  Any  member  desiring  to  be  so  excused  on  any  question,  shall 
make  apphcation  to  that  effect  before  a  division,  or  before  the  calling  of 
the  3'eas  and  naj's;  and  such  apphcation  shall  be  accompanied  b}'  a  brief 
statement  of  reasons,  and  shall  be  decided  without  debate. 

31.  Every  motion  shall  be  reduced  to  writing,  if  the  President  shall  so 
direct. 

32.  Any  member  may  call  for  the  division  of  a  question  when  the  sense 
will  admit  of  it.  A  motion  to  strike  out  and  insert  shall  be  deemed  in- 
divisible; but  a  motion  to  strike  out  being  lost,  shall  neither  preclude 
amendment,  nor  a  motion  to  strike  out  and  insert. 

33.  Motions  and  reports  may  be  committed,  or  recommitted,  at  the 
pleasure  of  the  Convention. 

34.  No  motion  or  proposition  of  a  subject  different  from  that  under 
consideration,  shall  be  admitted  under  color  of  amendment. 

35.  The  unfinished  business  in  which  the  Convention  was  engaged  at 
the  time  of  the  last  adjournment,  shall  have  the  preference  in  the  Orders 
of  the  Day. 

36.  No  rule  or  order  of  the  Convention  shall  be  dispensed  with,  altered, 
or  repealed,  unless  two-thirds  of  the  members  present  shall  consent 
thereto. 

37.  All  questions  relating  to  the  priority  of  business  to  be  acted  upon, 
shall  be  decided  without  debate. 

38.  Every  question  of  order  shall  be  noted  by  the  Secretary,  with  the 
decision  thereon,  and  inscribed  at  large  on  the  Journal. 

39.  It  shaU  be  the  duty  of  each  member  who  moves  that  any  conamittee 
be  instructed  to  inquire  into  the  expediency  of  amending  the  existing 
Constitution,  to  point  out  the  amendment  which  he  deems  expedient,  in 
writing,  to  accompany  his  motion,  or  to  furnish  a  written  statement 
thereof  to  such  committee,  if  by  them  required. 

Of  Moottors. 

40.  Two  Monitors  shall  be  appointed  for  each  division,  whose  duty  it 
shall  be  to  see  the  due  observance  of  the  Rules  and  Orders  of  the  Con- 
vention, and  on  demand  of  the  President,  to  return  the  number  of  votes 
and  members  in  their  respective  divisions. 


33 

41.  If  any  member  shall  transgress  any  of  the  Rules  or  Orders  of  the 
Convention,  and  persist  therein  after  being  notified  thereof  by  any  Monitor, 
it  shall  be  the  duty  of  such  Monitor  to  give  information  thereof  to  the 
Convention. 

Of  Petitions,  Memorlals,  etc. 

42.  All  papers  addressed  to  the  Convention,  except  petitions,  memorials 
and  remonstrances,  shall  be  presented  by  the  President,  or  by  a  member 
in  his  place,  and  shall  be  read  by  the  President,  Secretary,  or  such  other 
person  as  the  President  may  request,  and  shall  be  taken  up  in  the  order 
in  which  they  were  presented,  unless  where  the  Convention  shall  other- 
wise direct. 

43.  Every  member,  presenting  to  the  Convention  a  petition,  memorial, 
or  remonstrance,  shall  endorse  his  name  thereon,  with  a  brief  statement  of 
the  nature  and  object  of  the  instrument,  and  the  reading  of  the  same  from 
the  chair  shall  in  all  instances  be  dispensed  with,  unless  specially  ordered 
by  the  Convention. 

44.  All  reports,  petitions,  memorials,  remonstrances,  and  papers  of  a 
like  nature,  shall  be  presented  during  the  first  hour  of  each  session,  and  at 
no  other  time,  except  by  special  leave  of  the  Convention. 

45.  If  any  member  of  the  Convention  shall  so  request,  any  order,  which 
shall  be  proposed  for  adoption,  shall  be  passed  over  for  that  day  without 
question;  and  the  same  shall  be  considered  and  disposed  of,  on  the  suc- 
ceeding day,  in  the  same  manner  as  it  would  have  been  on  the  day  on 
which  it  was  offered,  if  no  objection  had  been  made. 

Of  Quorum. 

46.  Not  less  than  one  hundred  members  shall  constitute  a  quorum  for 
the  transaction  of  business. 

Of  Committees,  Reports,  axd  Resolutions. 

47.  No  committee  shall  sit  during  the  sessions  of  the  Convention,  with- 
out special  leave. 

48.  In  aU  elections,  by  ballot,  of  the  Convention,  a  time  shall  be  assigned 
for  such  election  at  least  one  daj'  previous  thereto. 

49.  In  all  elections  of  committees  of  the  Convention,  by  ballot,  the 
person  having  the  highest  number  of  votes  shall  act  as  chairman,  and 
when  the  committee  is  nominated  by  the  Chair,  the  member  first  named 
shall  be  chairman. 

50.  AU  papers,  relative  to  any  business  before  the  Convention,  shall  be 
left  with  the  Secretary,  by  any  member,  who  may  obtain  leave  of  absence, 
and  may  have  any  such  papers  in  his  possession. 

51.  The  rules  of  proceeding  in  the  Convention  shall  be  observed  in  a 
Committee  of  the  Whole,  so  far  as  they  may  be  applicable,  except  the  rule 
limiting  the  times  of  speaking;    but  no  member  shall  speak  twice  upon 


34 

any  question,  until  every  member,  who  shall  not  have  spoken,  shall  speak, 
if  he  desires  it.  A  motion  to  rise,  report  progress,  and  ask  leave  to  sit  again, 
shall  be  always  first  in  order,  and  shall  be  decided  without  debate. 

52.  Every  order  or  resolution  which  proposes  an  alteration  in  the 
Constitution,  and  all  reports  of  committees  appointed  to  consider  the 
propriety  and  expediency  of  making  any  alteration  therein,  shall  be  con- 
sidered in  Committee  of  the  Whole  before  they  are  debated  and  finally 
acted  upon  in  Convention. 

53.  Every  resolution  proposing  any  alteration  in  the  Constitution,  shall 
be  read  on  two  several  days  before  it  is  finaUy  acted  upon  and  adopted  by 
the  Convention. 

2.    SELECTED  PORTIONS  OF  THE  RULES  OF  RECENT  CON- 
STITUTIONAL CONVENTIONS. 

Compiled  from  the  Rules  of  the  Michigan  Convention  of  1907,  the  Ohio 
Convention  of  1912  and  the  New  York  Convention  of  1915. 

Order  of  Business. 
Michigan. 
Rule  10.     On  the  meeting  of  the  Convention,  the  order  of  business 
shall  be  as  follows: 

1.  Presentation  of  petitions. 

2.  Reports  of  standing  committees. 

3.  Reports  of  select  committees. 

4.  Conmiunications  from  State  officers. 

5.  Introduction  and  first  reading  of  proposals. 

6.  Second  reading  of  proposals. 

7.  Motions  and  resolutions. 

8.  Unfinished  business. 

9.  Special  orders  of  the  day. 
10.  General  orders  of  the  da}'. 

Ohio. 
Rule  33.     Until  January  21,  1912,  and  on  Mondays  thereafter,  the 
order  of  business  shall  be  as  follows: 

1.  Presentation  of  petitions  and  memorials. 

2.  Motions  and  introduction  of  resolutions. 

3.  Introduction  of  proposals  —  counties  to  be  called  in  alphabetical 
order,  said  order  to  be  reversed  each  alternate  time. 

4.  Reference  to  com^mittees  of  proposals  introduced  on  the  preceding 
days. 

5.  Reports  of  standing  committees  in  their  order. 

6.  Reports  of  select  committees. 

7.  Resolutions  laid  over. 

8.  Proposals  for  their  second  reading  and  consideration  as  to  substance 
by__the  Convention. 


35 

9.  Report  of  standing  Committee  on  Arrangement  and  Phraseology. 

10.  Proposals  for  their  third  reading. 

After  January  21,  1912,  except  on  Mondays,  the  order  of  business  shall 
be  as  follows : 

1.  Proposals  for  their  third  reading. 

2.  Report  of  standing  Committee  on  Arrangement  and  Phraseology. 

3.  Proposals  for  their  second  reading  and  consideration  by  the  Con- 
vention. 

4.  Resolutions  laid  over. 

5.  Reports  of  standing  committees,  in  their  order. 

6.  Reports  of  select  committees. 

7.  Reference  to  committees  of  proposals  introduced  on  the  preceding 
day. 

8.  Introduction  of  proposals  —  counties  to  be  called  in  alphabetical 
order,  said  order  to  be  reversed  each  alternate  day. 

9.  Motions  and  introduction  of  resolutions. 

10.  Presentation  of  petitions  and  memorials. 

Rule  34.  The  order  of  business  shall  not  be  changed,  unless  by 
unanimous  consent  or  a  suspension  of  Rule  33. 

Rule  35.  Any  matter  may  be  made  a  special  order  for  a  particular 
hour  of  the  day,  by  a  majority  of  the  members  present. 

Rule  36.  Not  earher  than  one  day  after  introduction  all  proposals 
may  be  committed  to  a  standing  committee  or  to  a  select  committee 
appointed  for  that  purpose. 

Rule  37.  All  proposals  shall  be  introduced  in  tripUcate,  one  copy  of 
which  shall  be  for  the  use  of  the  newspaper  reporters  of  the  Convention. 
Immediately  after  introduction  the  secretary  shall  cause  said  proposals 
to  be  printed. 

Rule  38.  After  the  report  of  any  committee  upon  a  proposal,  said 
proposal  shall  be  read  a  second  time  and  considered  by  the  Convention. 
This  consideration  shall  be  final  as  to  substance  but  not  necessarily  as  to 
arrangement  or  phraseology.  After  favorable  action  by  the  Convention, 
said  proposal  shall  be  referred  to  the  standing  Committee  on  Arrangement 
and  Phraseology,  and  shall  thereafter  be  read  a  third  time  in  full,  for  final 
action  of  the  Convention  as  to  form  only. 

Rule  39.  The  interun  between  any  two  sessions  of  the  Convention, 
on  the  same  day,  or  between  two  or  more  calendar  days,  when  the  Con- 
vention shall  so  order,  shall  be  termed  a  recess;  and,  upon  re-assembling 
at  the  appointed  hour,  any  question  pending  at  the  time  of  taking  a  recess, 
shall  be  resumed  without  any  motion  to  that  effect. 

Rule  40.  The  hour  to  which  the  Convention  shall  stand  adjourned 
from  day  to  day,  shall  be  5  o'clock  p.  m.  on  Mondays,  1.30  p.  m.  on  Tues- 
days, Wednesdays,  Thursdays  and  Fridays.  Unless  otherwise  ordered  no 
session  shall  be  held  on  Saturdays. 


36 


New  York. 
Rule  3.  The  first  business  of  each  day's  session  shall  be  the  reading 
of  the  Journal  of  the  preceding  day,  and  the  correction  of  any  errors  that 
may  be  found  to  exist  therein.  Immediately  thereafter,  except  on  days 
and  at  times  set  apart  for  the  consideration  of  special  orders,  the  order  of 
business  shall  be  as  follows : 

1.  Presentation  of  Memorials.  —  Under  which  head  shall  be  included 
petitions,  remonstrances  and  conamunications  from  individuals,  and  from 
public  bodies. 

2.  Communications  from  the  Governor  and  Other  State  Officers.  —  Under 
this  head  shall  be  embraced  also  communications  from  public  officers  and 
from  corporations  in  response  to  calls  for  information. 

3.  Notices,  motions  and  resolutions,  to  be  called  for  by  districts, 
nume^icall^^ 

4.  Propositions  for  constitutional  amendment,  by  districts,  in  numerical 
order. 

5.  Reports  of  standing  committees  in  the  order  stated  in  Rule  15. 

6.  Reports  of  select  coimnittees. 

7.  Third  reading  of  proposed  constitutional  amendments. 

8.  Unfinished  business  of  general  orders. 

9.  Special  orders. 

10.  General  orders. 

Reports  from  the  Committee  on  Revision  and  Engrossment  may  be 
received  under  any  order  of  business. 

Motions  and  their  Precedence. 

Michigan. 

Rule  22.  When  a  question  is  under  debate,  no  motion  shall  be  re- 
ceived but  — 

1.  To  adjourn. 

2.  To  take  a  recess. 

3.  To  lay  on  the  table. 

4.  For  the  previous  question. 

5.  To  postpone  to  a  day  certain. 

6.  To  commit. 

7.  To  amend. 

8.  To  postpone  indefinitely. 

Which  several  motions  shall  take  precedence  in  the  order  in  which  they 
stand  arranged.  When  a  recess  is  taken  during  the  pendency  of  any  ques- 
tion, the  consideration  of  such  question  shall  be  resumed  upon  reassem- 
bhng,  unless  otherwise  determined.  No  motion  to  postpone  to  a  day  cer- 
tain, to  commit  or  to  postpone  indefinitely,  being  decided,  shall  be  again 
allowed  on  the  same  day  and  at  the  same  stage  on  the  question. 


37 

Rule  23.  A  motion  to  adjourn  shall  always  be  in  order;  that  and  the 
motion  to  lay  on  the  table,  and  all  matters  relating  to  questions  of  order, 
shall  be  decided  without  debate.  A  motion  for  a  recess,  pending  the 
consideration  of  other  business,  shall  not  be  debatable. 

Ohio. 
Rule  46.    When  a  question  is  under  consideration,  no  motion  shall  be 
in  order  except  the  following,  which  motions  shall  have  precedence  in  the 
order  named : 

1.  To  adjourn. 

2.  To  take  a  recess. 

3.  To  proceed  to  the  orders  of  the  day. 

4.  To  lie  on  the  table. 

5.  For  the  previous  question. 

6.  To  postpone  to  a  day  certain. 

7.  To  commit. 

8.  To  amend. 

9.  To  postpone  indefinitely. 

Rule  47.  After  the  secretary  has  commenced  to  call  the  yeas  and 
nays  on  any  question,  no  motion  or  debate  shall  be  in  order  until  a  decision 
has  been  announced  by  the  chair. 

Rule  48.  When  a  motion  is  made  to  commit,  if  more  than  one  com- 
mittee is  suggested,  the  motion  shall  be  put  upon  the  committees  sug- 
gested, in  the  order  in  which  they  are  named;  but  a  motion  to  refer  to  the 
Committee  of  the  Whole,  to  a  standing  committee,  or  to  a  select  commit- 
tee, shall  have  precedence  in  the  order  here  named.  A  motion  to  commit 
may  not  be  reconsidered. 

Rule  49.  A  motion  to  postpone  to  a  day  certain,  or  indefinitely,  being 
decided  in  the  negative,  shall  not  be  again  allowed  at  the  same  stage 
of  the  proposition. 

Rule  50.  A  motion  to  adjourn  being  decided  in  the  negative,  shall 
not  be  again  entertained  until  some  motion,  call,  order,  or  debate  shall 
have  taken  place. 

Rule  51.    The  following  questions  shall  be  decided  without  debate: 

1.  To  adjourn. 

2.  To  take  a  recess. 

3.  To  lie  on  the  table. 

4.  The  previous  question. 

5.  To  take  from  the  table. 

6.  To  go  into  the  Committee  of  the  Whole. 

7.  All  questions  relating  to  the  priority  of  business. 


38 


New  York. 
Rule  44.     When  a  question  is  under  consideration,   the  following 
motions  onlj'  shall  be  received;   which  motions  shall  have  precedence  in 
the  order  stated,  viz. : 
Motions  to  or  for: 
1.  Adjourn  for  the  day. 


2.  Recess. 

3.  Call  of  the  Convention. 

4.  Previous  question. 

5.  Lav  on  the  table. 


Not  amendable  or  debatable. 


6.  Postpone  indefuiitely,  not  amendable,  but  debatable. 


7.  Postpone  to  a  certain  day. 

8.  Go  into  Committee  of  the  Whole. 

9.  Commit  to  Committee  of  the  Whole. 

10.  Commit  to  a  standing  committee. 

11.  Commit  to  a  select  committee. 

12.  Amend. 


Preclude  debates  on  main 
question. 


Rule  45.  Every  motion  or  resolution  shall  be  stated  by  the  President 
or  read  by  the  Secretary  before  debate,  and  again,  if  requested  by  any 
member,  immediately  before  putting  the  question;  and  every  motion, 
except  those  specified  in  subdivisions  1  to  11,  inclusive,  of  rule  44,  shall  be 
reduced  to  writing  if  the  President  or  any  member  request  it. 

Rule  46.  After  a  motion  shaU  be  stated  by  the  President,  it  shall  be 
deemed  in  the  possession  of  the  Convention,  but  may  be  withdrawn  at 
any  time  before  it  shall  be  decided  or  amended. 

Rule  47.  The  motion  to  adjourn,  to  take  a  recess,  and  to  adjourn  for 
a  longer  period  than  one  day,  shall  always  be  in  order;  but  the  latter 
motion  shall  not  preclude  debate. 

Rule  49.  No  amendment  to  a  motion  shall  be  received  while  another 
is  pending,  unless  it  be  an  amendment  to  the  amendment  and  germane  to 
the  subject. 

Committee  of  the  Whole. 
Michigan. 
Rule  30.  When  the  Convention  shall  have  arrived  at  the  "General 
Orders  of  the  Day,"  it  shall  go  into  committee  of  the  whole  upon  such 
orders,  or  a  particular  order  designated  by  a  vote  of  the  Convention,  and 
no  business  shall  be  in  order  until  the  whole  are  considered  or  passed,  or 
the  committee  arise:  and  unless  a  particular  subject  is  ordered  up,  the 
committee  of  the  whole  shall  consider,  act  upon  or  pass  the  general  orders , 
according  to  the  order  of  their  reference. 


39 

Rule  31.  Proposals  to  the  committee  of  the  whole  shall  first  be  read 
through  by  the  Secretary,  and  then  read  and  adopted  by  clauses.  All 
amendments  shall  be  entered  on  separate  paper  and  so  reported  to  the 
Convention  by  the  chairman. 

Rule  32.  A  motion  that  the  committee  arise  shall  always  be  in  order 
and  shall  be  decided  without  debate. 

Rule  33.  A  motion  to  reconsider  shall  be  in  order  in  committee  Of  the 
whole. 

Rule  34.  The  rules  of  the  Convention  shall  be  observed  in  committee 
of  the  whole,  so  far  as  they  may  be  applicable,  except  that  the  vote  of  a 
majority  of  said  committee  shall  govern  its  action;  it  cannot  refer  matter 
to  any  other  committee;  it  cannot  adjourn;  the  previous  question  shall 
not  be  enforced;  the  yeas  and  nays  shall  not  be  called;  a  motion  to  in- 
definitely postpone  shall  not  be  in  order;  a  member  may  speak  more  than 
once.  A  journal  of  the  proceedings  in  committee  of  the  whole  shall  be 
kept  as  in  convention. 

Ohio. 

Rule  70.  When  the  Convention  shall  be  ready  to  proceed  to  any 
order  of  the  day,  a  motion  to  go  into  Committee  of  the  Whole  on  the 
orders  of  the  day  shall  have  precedence  of  all  other  motions,  except  to 
adjourn,  to  take  a  recess,  and  for  the  previous  question. 

Rule  71.  In  forming  the  Committee  of  the  Whole,  the  president  shall 
leave  the  chair,  and  appoint  a  chairman,  who  shall  preside  and  vote  as 
other  members. 

Rule  72.  In  the  Committee  of  the  Whole,  proposals  shall  be  read 
by  the  chairman,  or  secretary,  and  be  considered  by  sections,  unless  it 
shall  be  otherwise  directed  by  the  committee,  leaving  the  preamble  to  be 
last  considered. 

Rule  73.  The  body  of  the  proposal  shall  not  be  defaced  or  interlined, 
but  amendments  shaU  be  noted  by  the  chairman,  or  secretary,  on  a  sep- 
arate piece  of  paper  as  the  same  shall  be  agreed  to  by  the  committee,  and 
so  reported  to  the  Convention. 

Rule  74.  After  being  reported,  the  proposal  and  amendments  of  the 
committee  shall  be  immediately  taken  up  for  consideration  unless  it  shall 
be  otherwise  ordered  by  the  Convention,  and  again  be  subject  to  discussion 
or  amendment. 

Rule  75.  The  rules  of  the  Convention  shall  be  observed  in  Committee 
of  the  Whole,  so  far  as  the  same  may  be  applicable,  except  that  it  may 
not  refer  matter  to  any  other  committee;  it  may  not  adjourn;  the  previous 
question  may  not  be  enforced;  the  yeas  and  na.ys  may  not  be  called;  a 
motion  to  postpone  indefinitely  maj^  not  be  in  order;  a  member  may  speak 
more  than  once.  A  journal  of  the  proceedings  in  Committee  of  the  Whole 
shall  be  kept  as  in  Convention,  and  all  debates  shall  be  reported  in  the 
same  manner.  Such  journal  shall  be  printed  in  the  Convention  journal, 
with  proper  designation. 


40 


New  York. 
Rule  25.  Any  matter  may  be  committed  to  the  Committee  of  the 
Whole  upon  the  report  of  a  standing  or  select  committee,  or  by  unanimous 
consent  at  any  time.  Any  committee  may  be  discharged  from  the  further 
consideration  of  any  matter  referred  to  it,  and  such  matter  may  then  be 
referred  to  the  Committee  of  the  Wliole,  by  a  vote  of  the  Convention. 
The  same  rules  shall  be  observed  in  the  Committee  of  the  Whole  as  in  the 
Convention,  so  far  as  the  same  are  appUcable,  except  that  the  previous 
question  shall  not  apply,  nor  the  yeas  and  nays  be  taken,  nor  a  limit  be 
made  as  to  the  number  of  times  of  speaking. 

EuLE  26.  A  motion  to  "rise  and  report  progress"  shall  be  in  order  at 
any  stage,  and  shall  be  decided  without  debate.  A  motion  to  rise  and 
report  is  not  in  order  until  each  section  and  the  title  have  been  considered, 
unless  the  limit  of  time  has  expired. 

Rule  27.  Proposed  constitutional  amendments  and  other  matters 
shall  be  considered  in  Committee  of  the  Whole  in  the  following  manner, 
viz.:  They  shall  be  first  read  through,  if  the  committee  so  direct;  other- 
wise they  shall  be  read  and  considered  by  sections.  When  the  limit  of 
time  has  expired,  the  amendments  which  have  been  proposed  and  not 
previously  acted  upon  shall  be  voted  upon  in  their  order  without  further 
debate.  The  proposed  constitutional  amendment  as  amended  shall  then 
be  voted  upon  without  debate,  and  the  committee  shall  then  rise  and 
report  in  accordance  with  the  action  wliich  it  has  taken. 

If  the  committee  shall  have  adopted  any  proposed  constitutional 
amendment,  the  same  shall  be  reported  complete  wdth  any  amendments 
made  in  the  committee  incorporated  in  their  proper  places. 

Rule  28.  If  at  any  time,  when  in  Committee  of  the  Whole,  it  be  ascer- 
tained that  there  is  no  quorum,  the  chairman  shall  immediately  report  the 
fact  to  the  President,  who  then  takes  the  chair  for  the  purpose  of  securing  a 
quorum,  and  when  that  is  obtained  the  chairman  resumes  his  duties. 

Rule  29.  Should  the  committee  not  have  completed  the  business 
before  it  rises,  the  chairman  will  report  progress  and  ask  leave  to  sit  again. 

The  Introduction  of  Amendments. 
Michigan. 
Rule  38.     All  matters  intended  to  become  a  part  of  the  revised  con- 
stitution shall  be  presented  by  a  member  of  the  Convention  in  the  form 
of  a  proposal,  and  shall  be  in  writing  and  shall  be  printed  at  length  in  the 
journal. 

Rule  39.  The  regular  order  to  be  taken  by  proposals  introduced  in 
the  Convention  shall  be  as  follows : 

1.  Introduction,  first  reading  and  reference  to  a  committee  by  the 
President,  unless  otherwise  ordered  by  a  majority  of  the  members  present. 

2.  Report  of  committee  and  placing  on  the  general  order. 


41 

3.  Consideration  in  committee  of  the  whole  in  order  of  reference. 

4.  Report  by  the  committee  of  the  whole  and  reference  to  the  Com- 
mittee on  Arrangement  and  Phraseology. 

5.  Report  of  Committee  on  Arrangement  and  Phraseology. 

6.  Second  reading,  vote  on  passage. 

7.  Re-reference  to  Committee  on  Arrangement  and  Phraseology. 

8.  Report  by  Committee  on  Arrangement  and  Phraseology  of  the  com- 
plete revision. 

9.  Reference  to  Committee  of  the  Whole,  which  shall  pass  it  by  sections. 

10.  Report  of  Committee  of  the  Whole  and  placing  on  the  order  of  third 
reading. 

11.  Third  reading  and  passage  by  articles  and  as  a  whole. 

Rule  40.  On  the  passage  of  every  proposal,  section,  article  and  the 
complete  revision,  the  vote  shall  be  taken  by  yeas  and  nays,  and  entered 
on  the  journal,  and  no  proposal,  section,  article  or  the  complete  revision 
shall  be  declared  passed  unless  a  majority  of  all  the  members  elected  to 
the  Convention  shall  have  voted  in  favor  of  the  passage  of  the  same. 

Ohio. 

Rule  83.  All  matters  intended  to  become  a  part  of  the  revised  con- 
stitution shall  be  presented  by  a  member  of  the  Convention  in  the  form 
of  a  proposal,  and  shall  be  in  writing  and  shall  be  printed  by  title,  number 
and  author's  name  in  the  journal.  Any  proposal  passed  upon  as  to  sub- 
stance after  its  second  reading  shall  be  printed  at  length  in  the  journal 
for  that  day;  and  any  proposal  that  shall  be  passed  upon  as  to  form  after 
third  reading  shall  be  printed  at  length  in  the  journal  for  that  day. 

Rule  84.  The  regular  order  for  proposals  introduced  in  the  Con- 
vention shall  be  as  follows : 

1.  Introduction  and  first  reading  by  title. 

2.  Printed  by  the  secretary  in  bill  form. 

3.  Reference  to  committee. 

4.  Report  by  committee. 

5.  Engrossment. 

6.  Second  reading  and  consideration  as  to  substance  by  the  Convention. 

7.  Reference  to  standing  Committee  on  Arrangement  and  Phraseology. 

8.  Report  of  standing  Committee  on  Arrangement  and  Phraseology. 

9.  Third  reading  and  consideration  as  to  form  by  Convention. 

Rule  85.  Proposals  shall  be  introduced  in  triplicate  and  shall  be 
placed  on  the  calendar  and  considered  in  the  order  in  which  they  were 
introduced,  unless  otherwise  provided. 

Rule  86.  All  proposals  shall  be  printed  and  distributed  for  the  use  of 
the  members  before  the  reference  thereof,  in  the  order  in  which  they  were 
introduced. 

Rule  87.  Before  proposals  are  read  the  second  time,  they  shall  be 
ordered  engrossed.  The  secretary  shall  engross  all  proposals  so  that  the 
line  numbers  shall  correspond  with  the  line  numbers  in  the  printed  pro- 
posals upon  the  members'  bill  books,  as  nearly  as  possible. 


42 

Rule  88.  If,  after  any  proposal  has  been  read  the  first  time,  no  motion 
or  order  for  its  commitment  shall  be  made,  it  shall  be  committed  to  the 
Committee  of  the  Whole  to  be  considered  in  its  order,  and  the  Convention 
shall  decide  when  it  shall  be  considered  by  the  committee. 

Rule  89.  When  a  proposal  is  ordered  to  be  engrossed,  it  shall  be  placed 
upon  the  calendar  for  its  second  reading  for  the  second  day  following, 
unless  the  Convention  by  a  majority  vote  otherwise  orders,  and  the  cal- 
endar for  each  day  shall  contain  a  list  of  all  proposals  for  third  reading 
on  the  succeeding  day. 

Rule  90.  If  a  proposal  has  been  amended  prior  to  its  second  reading, 
the  date  and  page  of  the  Convention  journal  containing  said  amendments 
shall  be  noted  on  the  calendar  immediately  below  the  title  of  the  proposal. 

Rule  91.  When  a  question  is  lost  on  engrossing  a  proposal  for  second 
reading  on  a  particular  day,  it  shall  not  preclude  a  question  to  engross  it 
for  second  reading  on  a  different  day.  If  on  a  division,  the  question  of 
engrossing  a  proposal  without  including  the  time  for  its  second  reading, 
shall  fail,  the  proposal  shall  be  lost. 

Rule  92.  Unless  otherwise  ordered  by  a  two-thirds  vote  of  the  Con- 
vention, proposals  on  the  calendar  for  second  or  third  reading  shall  be 
taken  up  and  read  in  their  order  without  a  motion  to  that  effect,  and  the 
question  shall  be  "Shall  the  proposal  pass?" 

Rule  93.  After  the  commitment  and  report  thereon  to  the  Conven- 
tion, or  at  any  time  before  its  passage,  a  proposal  may  be  recommitted. 

Rule  94.  Any  proposal  may  be  amended  until  the  final  vote  is  taken 
after  third  reading  thereof.  When  a  proposal  is  on  its  second  or  third 
reading  any  number  of  amendments  may  be  made;  but  pending  a  motion 
to  amend  one  part  of  the  proposal,  it  shall  not  be  in  order  to  amend  any 
other  part  of  the  proposal,  unless  the  second  amendment  is  necessary  to  a 
proper  construction  of  the  first.  One  amendment  shall  not  prevent  an- 
other in  any  other  part  of  the  proposal. 

Rule  95.  On  the  passage  of  every  proposal  at  its  second  and  third 
readings,  and  upon  the  final  passage  of  every  proposal,  section,  article, 
and  complete  revision,  the  vote  shall  be  taken  by  yeas  and  nays,  and 
entered  upon  the  Journal,  and  shall  be  passed  only  on  a  majority  vote  of 
all  members  elected  to  the  Convention. 

New  York. 
Rule  30.     No  proposition  for  constitutional  amendment  shall  be  intro- 
duced in  the  Convention  except  in  one  of  the  following  modes,  viz. : 

1.  Under  the  order  of  introduction  of  propositions  for  constitutional 
amendment  by  districts,  in  numerical  order. 

2.  By  report  of  a  committee. 

Rule  31.  Tlie  title  of  each  proposition  for  constitutional  amendment 
introduced  shall  state  concisely  its  subject-matter.  Matter  which  it  is 
proposed  to  strike  out  shall  be  in  brackets,  and  new  matter  shall  be  under- 
scored and  when  printed  shall  be  in  italics.  All  proposed  amendments 
shall  be  presented  in  dupUcate. 


43 

Rule  32.  All  propositions  for  constitutional  amendment,  after  their 
second  reading,  which  shall  be  by  title,  shall  be  referred  to  a  standing  or 
select  committee,  to  consider  and  report  thereon,  and  shall  be  immediately 
printed  and  placed  on  the  files  of  each  member.  All  proposed  constitu- 
tional amendments  reported  shall,  if  the  report  be  agreed  to,  be  committed 
to  the  Committee  of  the  WTiole  and  immediately  printed.  When  a  com- 
mittee has  reported  that  no  amendment  should  be  made  to  the  provisions 
of  the  existing  Constitution  relating  to  any  specified  subject,  and  such  re- 
port is  agreed  to,  all  propositions  for  constitutional  amendment  relating  to 
that  subject  which  have  been  referred  to  that  committee  shall  be  considered 
as  rejected.  All  constitutional  amendments  proposed  by  a  minority  report 
from  any  committee  shall  be  printed  and  placed  on  the  files  of  the  members 
of  the  Convention. 

Rule  33.  Proposed  constitutional  amendments  reported  by  the  Com- 
mittee of  the  WTiole  shaU  be  subject  to  debate  before  the  question  to  agree 
with  the  committee  on  their  report  is  put. 

Rule  34.  No  proposed  constitutional  amendment  shall  be  ordered  to  a 
third  reading  untU  it  shall  have  been  considered  in  Committee  of  the 
Whole. 

Rule  35.  No  proposed  constitutional  amendment  shall  be  put  upon 
tliird  reading  until  it  shall  have  been  reported  by  the  Committee  on  Revi- 
sion and  Engrossment  as  correctly  revised  and  engrossed,  unless  by  unani- 
mous consent.  Nor  shall  any  proposed  constitutional  amendment  be  read 
the  third  time,  unless  it  shall  have  been  once  printed. 

Rule  36.  Every  proposed  constitutional  amendment  shall  receive 
three  separate  readings,  previous  to  its  final  passage,  and  the  third  reading 
shall  be  on  a  day  subsequent  to  that  on  which  the  proposed  constitutional 
amendment  passed  in  Committee  of  the  Whole. 

Rule  37.  The  third  reading  of  proposed  constitutional  amendments 
shall  take  place  in  the  order  in  which  they  have  been  ordered  to  a  third 
reading,  unless  the  Convention,  by  a  vote  of  two-thirds  of  the  members 
present,  direct  otherwise,  or  the  proposed  constitutional  amendment  to  be 
read  is  laid  on  the  table.  And  the  question  on  the  final  passage  of  every 
proposed  constitutional  amendment  shall  be  taken  immediately  after  such 
third  reading,  and  without  debate,  but  the  vote  on  the  final  passage  of  every 
proposed  amendment,  revision  or  addition  to  the  Constitution  shall  be 
taken  by  ayes  and  naj'S,  which  shall  be  entered  on  the  journal. 

Rule  38.  In  all  cases  where  unanimous  consent  is  asked  for  advancing 
a  proposed  constitutional  amendment  out  of  its  order,  it  shall  be  the  duty 
of  the  President  to  plainly  announce  such  request  in  full  twice. 

Rule  39.  On  the  third  reading  of  a  proposed  constitutional  amend- 
ment, after  the  reading  of  the  title,  and  before  the  reading  of  the  text,  the 
proposed  constitutional  amendment  shall  be  open  one  hour,  if  required, 
for  debate  on  its  merits,  before  the  previous  question  shall  be  ordered;  but 
no  member  shall  speak  more  than  five  minutes  or  more  than  once;  the 
vote,  however,  may  be  taken  at  any  time  when  the  debate  is  closed. 


44 

Rule  40.  On  the  third  reading  of  the  proposed  constitutional  amend- 
ment, no  amendment  thereto  shall  be  in  order,  except  to  fill  blanks,  without 
unanimous  consent. 

Rule  41.  A  motion  may  be  made  during  the  third  reading  of  any  pro- 
posed constitutional  amendment  to  recommit  it,  and  such  motion  shall 
not  be  debatable. 

Rule  42.  A  register  shall  be  kept  by  the  Secretary  of  all  proposed 
constitutional  amendments  introduced  in  the  Convention,  in  which  shall 
be  recorded,  under  appropriate  heads,  the  progress  of  such  proposed  con- 
stitutional amendments  from  the  date  of  their  introduction  to  the  time  of 
their  final  disposition. 

Rule  43.  In  all  cases  where  a  proposed  constitutional  amendment, 
order,  motion  or  resolution  shall  be  entered  on  the  journal,  the  name  of  the 
member  introducing  or  moving  the  same  shaU  also  be  entered  on  the 
journal. 

The  Previous  Question. 
Michigan. 

Rule  24.  The  method  of  ordering  the  previous  question  shall  be  as 
follows:  Any  member  may  move  the  previous  question.  This  being 
seconded  by  at  least  ten  members,  the  chair  shall  put  the  question,  "Shall 
the  main  question  now  be  put?  "  This  shall  be  ordered  only  by  a  majority 
of  the  members  present  and  voting.  After  the  seconding  of  the  previous 
question  and  prior  to  order  the  same,  a  call  of  the  Convention  may  be 
moved  and  ordered  or  a  demand  for  the  yeas  and  nays  may  be  made,  but 
after  ordering  the  previous  question  no  call  or  motion  shall  be  in  order 
prior  to  the  decision  of  the  chair,  which  shall  be  decided  without  debate. 
The  effect  of  the  previous  question  shall  be  to  put  an  end  to  all  debate  and 
bring  the  Convention  to  a  direct  vote  upon  a  motion  to  commit,  if  such  a 
motion  shall  have  been  made,  and  if  this  motion  does  not  prevail,  then 
upon  amendments  reported  by  a  committee,  if  any;  then  upon  pending 
amendments,  and  then  upon  the  main  question.  When  a  motion  to  re- 
consider is  taken  under  the  previous  question  and  is  decided  in  the  affirm- 
ative, the  previous  question  shall  have  no  operation  upon  the  question  to 
be  reconsidered.  If  the  Convention  shall  refuse  to  order  the  main  question, 
the  consideration  of  the  subject  shall  be  resumed  as  though  no  motion  for 
the  previous  question  had  been  made. 

Rule  25.  All  incidental  questions  of  order  arising  after  a  motion  is 
made  for  the  previous  question,  and  pending  such  motion,  shall  be  de- 
cided whether  on  appeal  or  otherwise  without  debate. 

Ohio. 
Rule  62.    The  previous  question  shall  be  in  tliis  form:    "Shall  the 
debate  now  close?"    It  shall  be  permitted  when  demanded  by  five  or 
more  members,  and  must  be  sustained  by  a  majority  vote,  and,  until 


45 

decided,  shall  preclude  further  debate  and  all  amendments  and  motions, 
except  one  motion  to  adjourn  and  one  motion  to  lie  on  the  table. 

Rule  63.  All  incidental  questions,  or  questions  of  order,  arising  after 
a  motion  is  made  for  the  previous  question,  and  pending  such  motion, 
shall  be  decided  without  debate,  and  shall  not  be  subject  to  appeal. 

Rule  64.  On  a  motion  for  the  previous  question,  and  prior  to  voting 
on  the  same,  a  call  of  the  Convention  shall  be  in  order;  but  after  the 
demand  for  the  previous  question  shall  have  been  sustained,  no  call  shall 
be  in  order;  and  the  Convention  shall  be  brought  to  an  immediate  vote  — 
first  upon  the  pending  amendments  in  the  inverse  order  of  their  age,  and 
then  upon  the  main  question. 

Rule  65.  If  a  motion  for  the  previous  question  be  not  sustained,  the 
subject  under  consideration  shall  be  proceeded  with  the  same  as  if  the 
motion  had  not  been  made. 

New  York. 
Rule  53.  The  "previous  question"  shall  be  put  as  follows:  "Shall 
the  main  question  now  be  put?"  and  until  it  is  decided,  shall  preclude  all 
amendments  or  debate.  When,  on  taking  the  previous  question,  the  Con- 
vention shall  decide  that  the  main  question  shall  not  now  be  put,  the 
main  question  shall  be  considered  as  still  remaining  under  debate.  The 
"main  question"  shall  be  on  the  passage  of  the  proposed  amendment  to 
the  Constitution,  resolution  or  other  matter  under  consideration,  but 
when  amendments  thereto  are  pending,  the  question  shall  first  be  taken 
upon  such  amendments  in  their  order,  and  when  adopted  in  Committee 
of  the  Whole,  and  not  acted  on  in  the  Convention,  the  question  shall  be 
taken  upon  such  amendments  in  like  order. 

Reconsideration. 
Michigan. 
Rule  28.  Any  member  who  voted  on  the  prevailing  side  of  any  ques- 
tion may  move  for  a  reconsideration  thereof  on  the  same  or  next  succeed- 
ing day  or  upon  any  subsequent  day,  after  giving  three  days'  notice  of 
his  intention  to  do  so,  and  such  motion  shall  take  precedence  of  all  other 
questions,  except  a  motion  to  adjourn;  but  shall  not  be  renewed  on  the 
same  day. 

Ohio. 

Rule  57.  A  motion  to  reconsider  a  vote  must  be  made  by  a  member 
voting  with  the  prevailing  side,  and  such  motion,  to  be  in  order,  must 
be  made  within  the  next  two  calendar  days  of  actual  session  of  the  Con- 
vention, after  such  vote  was  taken,  and  the  same  shall  take  precedence 
of  all  other  questions,  except  a  motion  to  adjourn. 

Rule  58.  The  vote  on  any  question  may  be  reconsidered  by  a  ma- 
jority of  the  members  present. 


46 

Rule  59.  When  a  proposal  is  lost,  and  the  vote  is  reconsidered,  it 
shall  not  thereafter  be  committed  to  any  other  than  a  standing  committee. 

Rule  60.    A  motion  to  reconsider  may  not  be  reconsidered. 

Rule  61.  If  a  motion  to  reconsider  be  laid  on  the  table  it  does  not 
carry  to  the  table  the  proposal. 

New  York. 

Rule  48.  A  motion  to  reconsider  any  vote  must  be  made  on  the 
same  day  on  which  the  vote  proposed  to  be  reconsidered  was  taken,  or 
on  the  legislative  day  next  succeeding,  and  by  a  member  who  voted  in 
the  majority,  except  to  reconsider  a  vote  on  the  final  passage  of  a  proposed 
constitutional  amendment,  which  shall  be  privileged  to  any  member. 
Such  motion  may  be  made  under  any  order  of  business,  but  shall  be  con- 
sidered only  under  the  order  of  business  in  which  the  vote  proposed  to  be 
reconsidered  occurred.  When  a  motion  for  reconsideration  is  decided, 
that  decision  shall  not  be  reconsidered,  and  no  question  shall  be  t-nice 
reconsidered;  nor  shall  any  vote  be  reconsidered  upon  either  of  the  fol- 
lowing motions : 

To  adjourn. 

To  lay  on  the  table. 

To  take  from  the  table ;  or 

For  the  previous  question. 


STANDING  COMMITTEES  OF  THE  IVIICHIGAN  CONVEN- 
TION OF  1907,  THE  OHIO  CONVENTION  OF  1912  AND 
THE  NEW  YORK  CONVENTION  OF  1915. 

Committees  of  the  Michigan  Convention  of  1907. 

Number  of 
Members. 

I.    Boundaries,  Seat  of  Government,  and  the  Division  of  the 

Powers  of  Government, 5 

II.    Legislative  Department, 15 

III.  Executive  Department, 11 

IV.  The  Judiciarj^, .  15 

V.    Elections  and  Elective  Franchise, 9 

VI.  State  Officers  and  Salaries, 5 

VII.  Counties, 9 

VIII.  Townships, 9 

IX.  Cities  and  Villages, 15 

X.  PubUc  Service  Corporations, 15 

XI.  Banks  and  Banking, 9 

XII.  Private  Corporations, .       .  H 

XIII.  Education, 11 

XIV.  Finance  and  Taxation, 15 

XV.  Impeachment  and  Removals  from  Office,  ....  7 

XVI.    Exemptions, 7 


47 

Number  of 
Members. 

XVII.  Militia, 5 

XVIII.  Miscellaneous  Provisions, 13 

XIX.  Amendments  and  Revision, 9 

XX.  Schedules, 5 

XXI.  Arrangement  and  Phraseology, 5 

XXII.  Submission  and  Address  to  the  People,     ....  15 

XXIII.  Bill  of  Rights, 5 

XXIV.  PubUc  Lands  and  Reforestation, 5 

XXV.  Liquor  Traffic, U 

XXVI.  Eminent  Domain, o 

XXVII.  SuppUes  and  Expenditures, 5 

XXVIII.  Printing  and  Publication, 5 

Committees  of  the  Ohio  Cox^^ention  of  1912. 

I.  Agriculture, 17 

II.  Arrangement  and  Phraseology, 9 

III.  Banks  and  Banking, 1" 

IV.  Claims  against  the  Convention, 17 

V.  Corporations  other  than  Municipal, 17 

VT.  County  and  Township  Organization, 17 

VII.  Education, 17 

VIII.  Employees, 5 

IX,  Equal  Suffrage  and  Elective  Franchise,     ....  21 

X.  Good  Roads, 21 

XI.  Initiative  and  Referendum, 21 

XII.  Judiciarj'  and  Bill  of  Rights, 21 

XIII.  Labor, 17 

XIV.  Legislative  and  Executive  Departments,    ....  17 
XV.  Liquor  Traffic, 21 

XVI.  Method  of  Amending  the  Constitution,     ....  17 

XVII.  Miscellaneous  Subjects, 17 

XVIII.  Municipal  Government, 17 

XIX.  Printing  and  Pubhcation  of  Proceedings,  ....  17 

XX.  Pubhc  Works, 17 

XXI.  Rules, 7 

XXII.  Schedule, 17 

XXIII.  Short  BaUot, 17 

XXIV.  Submission  and  Address  to  the  People,     ....  17 
XXV.  Taxation, 21 

Committees  of  the  New  York  Cojtvention  of  1915. 

I.  The  Bill  of  Rights, 11 

II.  The  Legislature,  its  Organization,  and  the  Number,  Ap- 
portionment, Election,  Tenure  of  Office  and  Compensa- 
tion of  its  Members, 17 


48 

Number  of 
Members. 

TIT.    The  Powers,  Limitations  and  Duties  of  the  Legislature, 

except  as  to  Matters  otherwise  referred,         ...  17 
IV,    The  Right  of  Suffrage   and   the   Qualifications   to   hold 

Office, 17 

V.    The  Governor  and  Other  State  Officers,  their  Election  or 
Appointment,  Tenure  of  Office,  Compensation,  Powers 

and  Duties,  except  as  otherwise  referred,        ...  17 

VL    The  Judiciary, 17 

VII.  The  State  Finances,  Revenues,  Expenditures,  and  Restric- 
tions on  the  Powers  of  the  Legislature  in  respect  thereto, 

and  to  Public  Indebtedness, 17 

VIII.    Cities,  their  Organization,  Government  and  Powers,        .  17 

IX.    Canals, 11 

X.    Public  Utilities, 17 

XI.  Counties,  Towns  and  Villages,  their  Organization,  Gov- 
ernment and  Powers, 17 

XII.  County,  Town  and  Village  Officers,  other  than  judicial, 
their  Election  or  Appointment,  Tenure  of  Office,  Com- 
pensation, Powers  and  Duties, 17 

XIII.  State  Prisons  and  Penitentiaries,  and  the  Prevention  and 

Punishment  of  Crime, 11 

XIV.  Corporations    and    Institutions,   not    Otherwise  herein 

specified, 17 

XV.    Currency,  Banking  and  Insurance, 11 

XVI.    The  Militia  and  Military  Affairs, 7 

XVII.    Education  and  the  Funds  relating  thereto,         ...  17 

XVIII.    Charities  and  Charitable  Institutions,         ....  17 
XIX.    Industrial  Interests  and  Relations,  except  those  already 

referred, 17 

XX.    The  Conservation  of  the  Natural  Resources  of  the  State,  17 

XXI.    The  Relations  of  the  State  to  the  Indians  residing  therein,  7 

XXII.    Future  Amendments  and  Revisions  of  the  Constitution,  7 

XXIII.  Revision  and  Engrossment, 7 

XXIV.  Privileges  and  Elections, 11 

XXV.    Printing, 7 

XXVI.    Contingent  Expenses, 7 

XXVII.    Rules, 8 

XXVIII.    The  Civil  Service, 11 

XXIX.    Library  and  Information, - 

XXX.    Taxation, 17 


49 


BIBLIOGRAPHY. 

Fairlie,  J.  A.     "The  Michigan  Constitutional  Convention."     Michigan 

Law  Re\dew,  VI,  533. 
Dodd,  W.  F.    "The   Constitutional   Convention:   Preliminary  Work, 

Procedure  aad  Submission  of  Conclusions,"  in  The  Revision  of  the 

State  Constitution,  papers  presented  at  a  meeting  of  the  Academy 

of  Political  Science.     New  York,  1915. 
.  Shaw,  W.  B.    "Revising  New  York's  Constitution."    Review  of  Reviews, 

LII,  189. 
Lindsay,  S.  M.     "Constitution  INIaking  in  New  York."     The  Survey, 

XXXIV,  391,  491,  538,  579. 
Hendrick,  B.  J.    "Making  Over  New  York's  Constitution."    The  World's 

Work,  XXX,  545. 
Schurman,  J.  G.    "The  New  Constitution  for  the  State  of  New  York." 

Cornell  Law  Quarterly,  I,  1. 
Blauvelt,  G.  A.     "The  Work  of  the  [New  York]  Constitutional  Con- 
vention."    Cornell  Law  Quarterly,  I,  19. 
Evans,  L.  B.     "  Workings  of  the  Massachusetts  Constitutional  Conven- 
.     tion."     Bulletin  of  the  American  Library  Association,  September, 

1918. 
Jameson,   J.  A.     A    Treatise    on    Constitutional    Conventions:    Their 

Histor}',  Powers,  and  Modes  of  Proceeding.    Chicago,  1887. 
Hoar,  R.  S.    Constitutional   Conventions:    Their  Nature,  Powers,  and 

Limitations.    Boston,  1917. 


BULLETIN    No.    2 


STATE    BUDGET    SYSTEMS    IN    THE 
UNITED    STATES 


CONTENTS. 


PAGE 

I.     Introduction, 55 

Definition  of  a  Budget, ....  55 

The  Budget  in  European  Countries, 55 

Budget  Systems  in  American  States, 56 

Different  Types  of  Budget  Systems, 57 

II.     Executive  Budget  Systems  established  by  Constitution,      ...  58 

Marjdand  Budget  Amendment, 58 

Budget  Pro-vdsion  in  the  Proposed  New  York  Constitution,    .       .  61 

III.  Executive  Budget  Systems  established  by  Statute,      ....  61 

The  New  Jersey  Budget  Law, 62 

The  Ohio  Budget  Law, 63 

The  Nebraska  Budget  Law, .       .64 

The  Minnesota  Budget  Law, 64 

The  Massachusetts  Budget  Law, 65 

IV.  Budget  Laws  pro\'iding  for  a  Budget  Board  or  Committee,        .        .  68 

Wisconsin  and  Louisiana  —  Board  of  Public  Affairs,       ...  68 

Connecticut  —  State  Board  of  Finance, 69 

Budget  Law  of  North  Dakota  —  Budget  Board,      .       .       .       .70 

Budget  Law  of  Washington  ■ —  State  Board  of  Finance,          .        .  70 

Vermont  Budget  Law  —  State  Budget  Committee,         ...  71 

New  York  Budget  Law,  1916, 73 

Illinois  Budget  System,          .        .        .        .  # 74 

Oregon  Budget  Law, 75 

The  Budget  Commission  of  Tennessee, 76 

V.    The  Boston  Segregated  Budget, 76 

VI.    Results  under  Budget  Systems, 78 

Ohio, 79 

Wisconsin,        .     * 80 

California, 82 

Conclusion, 83 


54 

Appendix  A.  —  Summaiy  of  Budget  Provisions, 84 

Appendix  B.  • —  Maryland  Budget  Amendment, 87 

Appendix  C.  —  New   York   Budget   Statute   and   Budget  Provision  of 

Proposed  New  York  Constitution, 90 

Appendix  D.  —  New  Jersey  Budget  Statute, 94 

Appendix  E.  —  Massachusetts  Budget  Statute, 97 

Appendix  F.  —  Massachusetts  Budget  Amendment, 99 

Appendix  G.  —  Cahfornia  Budget  Amendment, 100 

Appendix  H.  —  West  Virginia  Budget  Amendment, ]01 

BibUography, 104 


STATE  BUDGET  SYSTEMS  IN  THE  UNITED 

STATES. 


I.  Introduction. 
Definition  of  a  Budget. 
A  budget  may  be  defined  as  a  plan  for  financing  the  government 
during  a  definite  period  which  is  prepared  and  submitted  by  a  respon- 
sible executive  to  a  representative  body  whose  approval  and  authori- 
zation are  necessary  before  the  plan  may  be  executed.^  A  budget  is 
essential  if  there  is  to  be  a  proper  balance  between  revenue  and  ex- 
penditures and  in  order  to  give  the  representatives  of  the  people 
adequate  control  over  expenditures. 

The  Budget  in  European  Countries. 
In  practically  all  European  countries  the  preparation  of  a  budget 
has  long  been  regarded  as  absolutely  necessary  to  secure  economy 
and  efficiency  in  the  administration  of  public  finances.  In  those 
countries  a  responsible  minister  makes  up  the  budget  and  it  is  his 
duty  to  co-ordinate  estimates  of  receipts  and  expenditures  into  a 
definite  plan.  Such  estimates  are  not  merely  conjectural  or  founded 
on  the  opinion  of  the  moment,  but  are  based  on  careful  estimates 
which  have  been  submitted  by  the  various  departments,  commis- 
sions, boards,  institutions  and  members  of  the  legislative  body.  The 
budget  submitted  for  enactment  into  law  gives  a  complete  statement 
of  estimated  expenditures  scientifically  classified,  together  with  a 
statement  of  the  sources  and  amount  of  income.  In  the  national 
government  of  the  United  States  and  in  most  of  the  States,  however, 
the  function  of  making  up  the  budget  has  been  assumed  by  appro- 
priation committees  with  the  result  that  our  governments  have  on 
the  whole  been  run  without  careful  financial  planning.  The  adoption 
of  a  budget  system  would  greatly  improve  conditions  in  this  country 

1  Frederick  A.  Cleveland,  "Budget  Idea  in  the  United  States,"  in  The  Annals  of  the  American  Academy 
of  Political  and  Social  Science,  Vol.  62,  November,  1915,  p.  15.  , 


56 

by  substituting  businesslike  financial  methods  for  the  present  unsci- 
entific, haphazard  practices  which  are  followed  by  most  legislatures 
and  appropriation  committees. 

Budget  Systems  in  American  States. 
Although  the  national  government  and  most  of  the  States  have 
been  backward  in  the  matter  of  improving  their  financial  procedure, 
there  has  been  a  movement  among  several  States  in  the  last  few 
years  which  has  resulted  in  the  adoption  of  budget  systems.  Begin- 
ning with  Wisconsin  in  1911,  this  movement  has  progressed  until  at 
the  present  time  there  are  twenty-three  States  which  have  provided 
for  permanent  budget  systems  of  one  type  or  another,  or  which  have 
made  provision  for  the  preparation  of  estimates  of  revenue  and 
expenditure.  These  States  are  Connecticut  (1915),  Illinois  (1913), 
Iowa  (1915),  Kansas  (1917),  Louisiana  (1916),  Maine  (1915),  Mary- 
land (1916),  Massachusetts  (1918),  Minnesota  (1915),  Nebraska 
(1915),  New  Jersey  (1916),  New  Mexico  (1917),  New  York  (1916), 
North  Carolina  (1917),  North  Dakota  (1915),  Ohio  (1913),  Oregon 
(1913),  South  Dakota  (1917),  Tennessee  (1917),  Utah  (1917),  Ver-, 
mont  (1915),  Washington  (1915),  and  Wisconsin  (1911). ^  The  State 
of  Delaware  decided  to  experiment  with  the  budget  plan,  and 
enacted  a  law  in  1917  providing  for  a  budget  for  a  single  session.^ 
]\Iississippi  took  similar  action  in  the  same  year,^  Of  the  States 
just  enumerated  Maryland  is  the  only  one  which  has  provided  for  a 
budget  system  in  its  Constitution.^  It  will  be  noted  that  all  of 
the  above-mentioned  budget  laws  have  been  enacted  within  the  last 
seven  years  and  that  most  of  them  have  been  enacted  within  the 
last  two  years. 

'  A  table  with  exact  references  to  the  several  statutes  on  the  budget  may  be  found  in  Appendix  A. 

-  Laws  of  Delaware,  1917,  chapter  378.    The  resolve  opens  with  the  following  frank  confession: 

"Whereas  it  has  been  the  custom  in  this  State  for  each  General  Assembly  to  appropriate  large  sums 
of  money  without  regard  to  the  condition  of  the  State  Treasury;   and 

"Whereas  this  system  has  resulted  in  much  confusion  and  embarrassment  to  the  different  depart- 
ments of  the  state  Government;   and 

"Whereas  it  is  the  universal  desire  that  the  General  Assembly  shall  first  provide  for  the  necessary 
expenses  of  the  State  Government  for  the  two  ensuing  fiscal  years; 

"  Therefore  he  it  resolved,"  etc. 

'  Laws  of  Mississippi,  Extraordinar;/  Session,  1917,  chapter  60. 

*  Since  the  above  statement  was  prepared,  Massachusetts  and  West  Virginia  have  adopted  amend- 
ments providing  for  budget  systems.  See  Appendices  F  and  H.  An  amendment  submitted  in  California 
in  November,  1918,  was  rejected. 


57 


Different  Types  of  Budget  Systems. 

In  general  there  are  two  methods  of  constituting  the  central 
budget-making  authority  in  the  various  States.  In  several  of  the  com- 
monwealths, including  Connecticut,  Louisiana,  New  York,  North 
Dakota,  South  Dakota,  Tennessee,  Washington,  Wisconsin  and  Ver- 
mont, a  board  or  committee  is  responsible  for  the  preparation  of  the 
budget  and  its  submission  to  the  Legislature.  The  States  of  Kansas, 
Maryland,  IMassachusetts,  Minnesota,  Nebraska,  New  Jersey,  New 
Mexico,  Ohio  and  LItah,  on  the  other  hand,  have  provided  for  an 
"executive  budget,"  which  places  upon  the  Governor  alone  the  duty 
of  submitting  the  tentative  budget  of  estimated  appropriations  and 
revenue.  The  early  budget  laws  followed  the  former  plan,  but  the 
recent  tendency  is  toward  the  executive  budget.  In  addition  to  these 
two  general  methods  there  is  the  Oregon  plan,  according  to  which  the 
Secretary  of  State  tabulates  the  estimates;  while  in  North  Carolina 
the  Legislative  Reference  Librarian  is  required  to  collect  estimates 
from  the  several  departments  and  tabulate  them  for  the  use  of  the 
departments  and  of  the  Legislature. 

After  the  tentative  budget  has  been  prepared  either  by  the  Gov- 
ernor or  the  budget  board,  it  is  submitted  to  the  Legislature  for 
consideration  and  action.  In  all  of  the  States  except  Maryland  and 
New  Mexico  tli^  budget  as  presented  by  the  central  budget-making 
authority  is  merely  advisory,  and  the  recommendations  which  it 
contains  may  be  rejected  and  its  items  increased,  decreased  or 
stricken  out  by  the  Legislature  without  restriction.  In  Maryland 
and  New  Mexico,  however,  the  Legislature  cannot  increase  the 
Governor's  budget.  It  may  only  reduce  or  strike  out  items,  and 
may  enact  supplementary  measures  for  purposes  not  provided  for  in 
such  budget  only  by  following  the  special  procedure  indicated.  The 
budget  amendment  submitted  by  the  New  York  Constitutional  Con- 
vention of  1915  contained  a  similar  provision,  as  does  also  the  con- 
stitutional amendment  now  pending  in  West  Virginia. 

The  adoption  of  this  limitation  upon  the  power  of  the  Legislature 
to  make  appropriations  in  excess  of  the  sums  recommended  in  the 
budget  is  a  step  of  great  importance.  In  Great  Britain  it  has  long 
been  the  rule  that  Parliament  will  make  no  appropriation  which  the 
ministry  has  not  included  in  the  budget.  In  the  United  States  there 
is  comparatively  little  connection  between  the  estimates  submitted 


58 

by  the  Secretary  of  the  Treasury  and  the  appropriations  made  by 
Congress.  It  is  common  for  tha^t  body  not  only  to  make  appropria- 
tions which  the  executive  has  not  recommended  but  also  appropria- 
tions which  he  has  strongly  opposed.  In  the  States  budgetary  legis- 
lation has  thus  far  not  gone  much  beyond  the  preparation  by  the 
executive  of  estimates  of  revenue  and  expenditure.  Hence  the 
acceptance  in  a  few  States  of  the  sound  budgetary  principle  that 
while  the  Legislature  may  reduce  the  amounts  recommended  by  the 
executive  it  will  never  increase  them  marks  a  great  advance. 

II.  Executive  Budget  Systems  established  by  Constitution. 
Maryland  Budget  Amendment} 

^Maryland  is  not  only  the  first  of  the  States  to  adopt  a  constitu- 
tional provision  for  a  budget  system,  but  it  has  gone  farther  than 
any  of  the  commonwealths  in  developing  the  idea  of  an  executive 
budget.  The  recent  amendment  resulted  from  the  efforts  of  Gover- 
nor Harrington's  Commission  on  Economy  and  Efficiency,  and  was 
adopted  by  the  voters  at  the  general  election  in  November,  1916,  by 
a  vote  of  77,478  to  37,100.  In  general,  the  amendment  follows  the 
principles  set  forth  in  the  proposed  New  York  Constitution  of  1915. 

Governor  to  submit  Budget.  —  The  Maryland  constitutional  amend- 
ment provides  that  the  Governor  shall  present  a  budget  to  the  Legis- 
lature within  twenty  days  after  the  convening  of  that  body,  setting 
forth  a  complete  plan  of  proposed  expenditures  and  estimated  rev- 
enues for  the  two  ensuing  years  (appropriations  are  made  biennially 
in  Maryland).  For  the  purpose  of  making  up  the  budget,  the  Gov- 
ernor may  require  State  officials  to  submit  itemized  estimates  of  their 
appropriations  and  such  other  information  as  he  may  desire.  The 
Governor  may  provide  for  public  hearings  on  all  estimates,  and  may 
require  the  attendance  of  any  official  or  other  person  applying  for 
State  moneys.  After  such  public  hearings  the  Governor  may,  in  his 
discretion,  revise  all  estimates  except  those  for  the  judiciary  and  the 
Legislature  and  for  the  public  schools. 

Content  and  Form  of  Budget.  —  As  to  contents,  the  budget  in 
Maryland  includes  not  only  the  estimated  appropriations  for  the  ex- 
ecutive branch  of  the  government,  but  also  those  for  the  judiciary  and 
Legislature  as  well.  The  Governor,  however,  does  not  have  power  to 
revise  the  estimates  of  the  legislative  and  judicial  departments  or  for 

'  Constitution  of  Maryland,  Art.  Ill,  Sect.  52.    For  text  of  amendment  see  Appendix  B. 


59 

the  public  schools,  and  such  estimates  are  included  in  the  budget 
without  alteration. 

In  regard  to  form,  the  budget  must  include  not  only  a  complete 
plan  of  proposed  expenditures  and  anticipated  revenues  for  each  en- 
suing fiscal  year,  but  must  also  show  the  estimated  surplus  or  deficit 
of  revenues  at  the  end  of  such  year.  It  must  also  be  accompanied  by 
a  statement  setting  forth  the  following  information:  (1)  the  revenues 
and  expenditures  for  each  of  the  two  fiscal  years  next  preceding;  (2) 
the  current  assets,  liabilities,  reserves,  and  surplus  or  deficit  of  the 
State;  (3)  the  debts  and  funds  of  the  State;  and  (4)  any  explana- 
tions the  Governor  may  desire  to  make  as  to  the  important  features 
of  the  budget,  or  as  to  methods  for  reducing  or  increasing  the  State's 
revenue. 

Budget  to  be  accompanied  by  a  "Budget  Bill." — After  the  budget 
has  been  prepared,  the  Governor  presents  it  to  the  presiding  officer 
of  each  house,  together  w^ith  a  "Budget  Bill"  providing  for  all  pro- 
posed appropriations  fuljy  itemized  and  classified.  Before  final  action 
has  been  taken  by  the  Legislature,  the  Governor,  with  the  consent  of 
that  body,  may  amend  or  supplement  the  budget  in  order  to  correct 
an  oversight  or  in  case  of  an  emergency.  All  such  amendments  or 
supplements  are  made  a  part  of  the  original  budget  bill. 

Limitations  upon  Legislature.  —  In  acting  upon  the  budget  bill,  the 
Legislature  may  not  increase  the  estimates  submitted  by  the  Gover- 
nor except  appropriations  for  the  judiciary  and  for  the  Legislature 
itself.  In  all  other  cases  the  Legislature  is  limited  merely  to  reducing 
or  striking  out  items.  It  is  in  this  respect  that  the  Maryland  budget 
system  differs  from  the  budget  plans  of  other  States.  The  Commis- 
sion on  Economy  and  Efficiency,  which  recommended  the  adoption  of 
the  present  constitutional  provision,  was  of  the  opinion  that  such  a 
limitation  was  necessary  in  order  "to  prevent  the  recurrence  of  defi- 
cits in  the  finances  of  the  State,  and  to  fix  responsibility  for  any 
derangement  of  the  financial  plans  of  the  Governor.  ...  It  was 
recognized  that  the  weakness  of  all  American  financial  methods,  in 
the  Congress  of  the  United  States,  as  well  as  in  the  Legislatures  of 
the  separate  States,  was  to  be  found  in  the  practice  to  which  all 
American  legislative  bodies  are  addicted  of  adding  either  to  the 
amounts  demanded  by  the  administrative  departments,  or  to  the 
items  for  which  appropriations  were  asked. "^ 

'  Report  of  Commission  on  Economy  and  Efficiency  of  the  State  of  Maryland,  1916,  Senate  Journal,  Jan- 
uary 28,  1916,  pp.  129-134. 


60 

The  budget  bill  when  passed  by  both  houses  of  the  Legislature  be- 
comes a  law  immediately,  and  does  not  have  to  be  presented  to  the 
Governor  for  his  approval.  If  the  Legislature  does  not  act  finally 
upon  the  bill  at  least  three  days  before  the  expiration  of  the  regular 
session,  it  is  made  the  duty  of  the  Governor  to  extend  the  session  for 
such  further  period  as  may  be  deemed  necessary,  but  no  other  matter 
may  be  considered  during  the  extended  session. 

Supplementary  Appropriations.  —  Although  the  Legislature  is  pro- 
hibited from  increasing  the  items  recommended  in  the  Governor's 
budget,  it  Is  given  power  to  enact  supplementary  appropriation  bills 
for  purposes  not  included  therein,  provided  that  a  majority  vote  of 
all  the  members  elected  to  each  house  is  obtained.  Every  such  ap- 
propriation, however,  must  be  embodied  in  a  separate  bill  limited  to 
a  single  object  and  purpose,  and  provision  must  be  made  in  the  bill 
itself  for  a  levy  of  a  tax  sufficient  in  amount  to  defray  the  expenses 
thereof.  Moreover,  neither  house  of  the  Legislature  may  consider 
any  supplementary  appropriation  until  the  general  budget  bill  has 
been  acted  upon.  Unlike  the  general  appropriation  act,  all  supple- 
mentary measures  must  be  presented  to  the  Governor  for  his  ap- 
proval or  veto. 

Purpose  of  Maryland  Budget  Provision.  —  According  to  the  Mary- 
land Commission  on  Economy  and  Efiiciency,  the  following  purposes 
were  kept  in  mind  in  framing  the  above  amendment:  — 

To  impose  upon  the  Governor  the  sole  responsibility,  within  the  limits  of  the 
Constitution  and  the  provisions  of  existing  law,  of  presenting  to  the  Legislature 
a  complete  and  comprehensive  statement  of  the  needs  and  resources  of  the 
State,  based  upon: 

(a)  Estimates  made  by  those  applying  for  State  moneys ; 

(6)  Evidence  brought  out  at  public  hearings  on  those  estimates ;  and 

(c)  Administrative  revision  by  the  Governor  of  all  estimates  except  those  for 
the  Legislature  and  the  Judiciary  and  for  purposes  for  which  provision  has  been 
made  by  the  Constitution  or  existing  law. 

To  make  it  impossible  for  the  Legislature  so  to  change  the  plans  proposed  by 
the  Governor  as  to  produce  a  deficit;  but 

To  permit  the  Legislature  to  make  provision  for  any  purpose  not  included 
in  the  Governor's  plan,  on  the  condition  that  it  provide  also  for  the  revenue 
which  the  accompUshment  of  its  purpose  necessitates.^ 

In  1917  the  Legislature  of  New  Mexico  and  the  Legislature  of 
Utah  established  by  statute  budgets  much  like  that  of  Maryland. ^ 

'  Report  of  Commission  on  Economy  and  Efficiency  of  the  State  of  Maryland,  1916. 
»  Lotos  of  New  Mexico,  1917,  chapters  81,  114;   Laws  of  Utah,  1917,  chapter  15. 


61 


Budget  Provision  in  the  Proposed  New   York  Constitution  of  1915} 

Since  the  recent  Maryland  budget  amendment  is  very  similar  to 
the  plan  which  was  included  in  the  proposed  New  York  Constitution 
of  1915,  a  brief  description  of  that  proposal  will  be  of  interest.  It 
should  be  noted  that  the  Convention  was  almost  unanimous  in  adopt- 
ing the  budget  provision,  the  vote  being  132  to  3;  while  the  press 
was  practically  a  unit  in  giving  support  to  the  plan. 

Article  V  of  the  proposed  constitution  would  vest  the  initiation  of 
the  budget  in  the  Governor,  the  provision  being  that  each  depart- 
ment should  on  or  before  November  fifteenth  submit  to  him  "item- 
ized estimates  of  appropriations  to  meet  the  financial  needs  of  such 
department,  including  a  statement  in  detail  of  all  moneys  for  which 
any  general  or  special  appropriation  is  desired,  classified  according  to 
relative  importance  and  with  such  explanations  as  the  Governor  may 
require."  As  in  Maryland,  the  Legislature  and  judiciary  were  re- 
quired to  submit  their  estimates,  which  were  to  be  included  in  the 
budget  without  revision. 

The  proposed  New  York  provision  required  that  the  Governor 
should  present  the  budget  to  the  Legislature  on  or  before  the  first 
day  of  February,  and  that  it  should  be  accompanied  by  a  "bill  or 
bills"  for  all  proposed  expenditures  clearly  itemized.  Like  the  Mary- 
land system  the  Legislature  could  only  reduce  or  strike  out  items  in 
the  budget  except  items  for  the  Legislature  and  judiciary,  and  the 
bill  was  to  become  a  law  without  further  action  by  the  Governor. 
Neither  branch  of  the  Legislature  was  to  consider  further  appropria- 
tion bills  until  the  recommendations  of  the  Governor  had  been  dis- 
posed of,  and,  as  in  Maryland,  each  supplementary  appropriation  was 
to  be  made  in  a  separate  act  limited  to  a  single  object  and  purpose. 

Although  this  plan  was  unanimously  favored  by  the  Convention 
and  the  press,  and  received  favorable  consideration  throughout  the 
country,  it  was  defeated  when  the  Constitution  as  a  whole  was  rejected 
at  the  polls. 

IIL    Executive  Budget  Systems  established  by  Statute, 

In  addition  to  Maryland  the  States  of  Kansas,  jMassachusetts, 
Minnesota,  Nebraska,  New  Jersey,  New  Mexico,  Ohio  and  Utah 
have  provided  for  executive  budget  systems.     In  these  States,  how- 

1  Proposed  New  York  Constitution,  191S,  Art.  V.     For  text  of  amendment  see  Appendix  C. 


62 

ever,  the  budget  has  merely  a  statutory  basis,  and  New  Mexico  is 
the  only  State  in  which  the  Legislature  has  bound  itself  not  to 
increase  the  items  in  the  Governor's  bill,  except  those  relating  to 
the  legislative  or  judiciary  departments,  and  to  enact  no  other  ap- 
propriation bills  until  the  Governor's  bill  is  disposed  of.  In  all  the 
other  States  the  budget  is  only  a  recommendation  from  the  executive, 
and  the  extent  to  which  it  is  followed  depends  upon  whether  the 
Legislature  and  the  Governor  co-operate  with  each  other.  The  laws 
of  each  of  the  States  will  be  reviewed  briefly. 

The  Neiv  Jersey  Budget  Law.^ 

The  New  Jersey  budget  law  was  passed  in  1916  and  provides  that 
the  Governor  shall  be  responsible  for  the  preparation  of  the  tentative 
budget  and  its  presentation  to  the  Legislature.  Each  department  of 
the  State  government  and  every  board,  commission,  institution,  or 
other  State  agency  desiring  an  annual  appropriation  must  present  its 
requests  to  the  Governor  on  or  before  November  15  of  each  year. 
It  is  further  required  that  unofficial  organizations  and  individuals 
shall  likewise  present  their  requests  to  the  Governor.  The  State 
treasurer  and  comptroller  must  furnish  the  Governor  with  complete 
information  as  to  the  probable  revenue  for  the  ensuing  two  years 
and  as  to  the  present  financial  condition  of  the  State. 

L^pon  receipt  of  the  requests,  the  Governor  considers  them  and 
makes  his  recommendations,  with  the  limitation  that  he  shall  not 
recommend  appropriations  in  excess  of  the  anticipated  revenue.  He 
may  summon  witnesses  and  conduct  hearings,  or  appoint  some  other 
person  to  make  such  examinations.  If  the  additional  duties  prove 
too  burdensome,  the  Governor  is  authorized  to  appoint  ofiicers  of  the 
State  government,  together  with  not  more  than  two  assistants,  to  act 
as  a  committee  to  aid  him  in  preparing  the  budget. 

Content  and  Form  of  Budget.  —  As  in  Maryland,  the  budget  in- 
cludes not  only  the  estimates  for  the  executive  department,  but  also 
for  the  legislative  and  judiciary.  Since  there  is  no  provision  to  the 
contrary,  it  is  to  be  inferred  from  the  statute  that  the  Governor  has 
the  same  power  to  revise  the  estimates  of  the  legislative  department 
as  those  of  the  executive  branch  of  the  government. 

Budget  to  be  transmitted  as  a  Special  Message.  —  The  Governor  is 
required  to  transmit  the  budget  to  the  Legislature  on  the  second 

'  Acts  of  New  Jersey,  1916,  chapter  15. 


63 

Tuesday  in  January  in  the  form  of  a  special  message.  "The  message 
of  the  Governor  shall  be  in  such  form  that  it  can  be  easily  under- 
stood by  the  average  citizen,  and  shall  be  printed  and  a  copy  thereof 
presented  to  each  member  of  the  Legislature"  and  given  such  other 
publicity  as  may  be  deemed  wise.  If  he  thinks  it  necessary,  the 
Governor  may  from  time  to  time  transmit  special  messages  request- 
ing additional  appropriations  for  purposes  not  anticipated  at  the  time 
the  provisional  budget  was  submitted  to  the  Legislature. 

Appropriations  to  be  made  in  Single  Act.  —  Provision  is  made  that 
all  appropriations  shall  be  included  in  a  "General  Appropriation 
Bill,"  and  it  is  the  intent  of  the  act  that  no  supplemental,  deficiency 
or  incidental  bills  shall  be  considered.  No  limitation  is  placed  upon 
the  Legislature  in  considering  the  Governor's  budget  and  that  body 
may  increase  as  w^ell  as  strike  out  or  reduce  items  that  are  recom- 
mended. 

Transfers.  —  The  New  Jersey  law  recognizes  the  fact  that  an  item- 
ized budget  is  apt  to  be  too  rigid  without  a  system  of  transfers.  Li 
order,  therefore,  that  some  degree  of  flexibility  may  be  had  in  appro- 
priations, any  department  or  other  State  agency  receiving  an  appro- 
priation may  apply  to  the  State  House  Commission  for  leave  to 
transfer  a  part  of  any  item  granted  to  such  department  to  any  other 
item  in  its  appropriation,  provided,  however,  that  no  sum  appropri- 
ated for  any  permanent  improvement  shall  be  used  for  maintenance 
or  for  any  temporary  purpose. 

In  1917  the  Legislature  of  Kansas  enacted  a  law  providing  for  a 
budget  closely  resembling  that  of  New  Jersey.^ 

The  Ohio  Budget  Law." 
The  Ohio  budget  system  is  very  similar  to  that  of  New  Jersey.  At 
the  beginning  of  the  session  of  the  General  Assembly,  the  Governor  is 
required  to  submit  his  budget  of  current  expenses  for  the  ensuing  bi- 
ennial period,  together  with  the  original  estimates  from  the  various 
departments,  institutions,  commissions  and  officers  of  the  State.  The 
heads  of  departments,  institutions,  etc.,  are  required  to  report  their 
estimates  on  or  before  November  15  in  itemized  form  and  on  blanks, 
provided  for  that  purpose;  while  the  State  Auditor  is  required  to 
furnish  the  Governor  with  complete  information  as  to  the  anticipated 
revenues  and  expenditures  for  the  four  preceding  years. 

1  Session  Laws  of  Kansas,  1917,  chapter  312.  '  Legislative  Acts  of  Ohio,  1913,  pp.  658,  659. 


64 

Special  Provisions  for  obtaining  Information.  —  The  Governor  may 
at  any  time  appoint  competent  disinterested  persons  to  examine 
without  notice  the  affairs  of  any  department,  institution  or  office  in 
order  to  ascertain  facts  and  to  make  recommendations  relative  to 
increasing  the  efficiency  and  curtaiHng  the  expense  of  such  depart- 
ment. The  Governor  may  fix  the  compensation  of  such  appointees 
and  cause  their  salaries  to  be  paid  out  of  any  appropriation  that  is 
made  for  the  executive  department.  In  pursuance  of  this  provision, 
the  Governor  of  Ohio  has  appointed  a  Budget  Commissioner  who 
looks  after  the  compiling  of  data  and  the  detailed  preparation  of  the 
provisional  budget. 

The  Ohio  law  is  much  more  brief  than  those  of  the  other  States 
and  does  not  contain  any  provisions  as  to  the  form  of  budget,  budget 
hearings,  consolidated  appropriation  bills,  or  limitations  upon  the 
Legislature. 

The  Nebraska  Budget  Laiv.^ 

The  Nebraska  budget  law,  like  that  of  New  Jersey  and  Ohio, 
makes  the  Governor  responsible  for  the  preparation  of  the  budget. 
Important  features  of  the  law  are:  (1)  that  the  Governor  must  give 
brief  reasons  for  each  item  of  expenditure  in  which  the  proposed  ap- 
propriation is  different  from  that  of  the  previous  biennial  period,  and 
(2)  provisions  requiring  the  estimates  to  be  classified  in  such  man- 
ner as  to  exhibit  clearly  the  items  of  proposed  expenditure  and  to 
distinguish  between  those  for  salaries,  maintenance,  permanent  im- 
provements, and  new  governmental  undertakings. 

Budget  to  be  presented  as  Part  of  Special  Message.  —  As  in  New 
Jersey  the  tentative  budget  shall  be  presented  to  the  Legislature  at 
the  opening  of  the  session  as  a  part  of  a  special  budget  message  from 
the  Governor.  This  message  must  be  presented  in  form  convenient 
for  use  and  copies  sent  at  the  time  of  its  delivery  to  members  of  the 
Legislature  and  to  the  press. 

Provision  is  not  made  in  the  Nebraska  budget  law  for  a  consoli- 
dated appropriation  act  and  there  are  no  limitations  upon  the 
Legislature. 

The  Minnesota  Budget  Law.^ 
The  budget  act  of  1915  requires  the  heads  of  departments,  boards, 
commissions  and  other  officers  under  whose  direction  public  money 

>  Laws  of  Nebraska,  1915,  chapter  229. 

2  Session  Laws  of  Minnesota,  1915,  chapter  356. 


65 

is  expended  to  submit  estimates  to  the  Governor  not  later  than 
December  1  in  each  year  immediately  preceding  the  next  regular 
session  of  the  Legislature.  These  estimates  are  required  to  show  the 
expenditures  for  the  purposes  indicated  in  each  year  of  the  biennial 
period  just  closing  and  how  those  expenditures  have  been  met. 
They  are  also  to  show  the  amounts  needed  for  each  year  of  the 
biennial  period  next  ensuing  and  the  anticipated  revenues  from 
which  they  can  be  obtained.  The  form  in  which  the  estimates  are 
to  be  presented  is  prescribed  in  considerable  detail.  Not  later  than 
the  end  of  December  the  Governor  is  required  to  assemble  the  esti- 
mates, make  such  revision  as  he  sees  fit,  and  embody  the  whole  in  a 
budget  bill  which  is  to  be  printed  and  submitted  to  the  Legislature 
not  later  than  the  first  day  of  February. 

The  Governor  complains  that  the  great  defect  of  this  law  is  that 
he  is  not  given  sufiicient  time  for  the  consideration  of  the  estimates 
submitted  to  him.  In  1917  the  appropriations  finally  approved  by 
the  Governor  exceeded  his  budget  by  more  than  two  and  a  half 
million  dollars. 

The  Massachusetts  Budget  Laiv. 
Financial  Procedure  in  Massachusetts.  —  Although  financial  pro- 
cedure in  Massachusetts  has  been  regarded  as  much  better  than 
that  of  most  American  States,  there  is  no  provision  for  a  budget 
system  in  the  Constitution  nor  had  such  a  system  been  established 
by  statute  until  the  passage  of  chapter  244  of  the  General  Acts  of 
1918.  Steady  progress  in  that  direction,  however,  had  been  made  in 
recent  years.  Chapter  719  of  the  Acts  of  1912  required  the  heads  of 
all  State  departments  and  activities  to  submit  to  the  Auditor  on  or 
before  November  15  iii  each  year  their  estimates  for  the  coming 
year,  and  further  required  the  Auditor  to  file  these  estimates,  to- 
gether with  a  statement  of  estimated  revenue,  a*nd  report  the  same 
to  the  General  Court  when  convened.  Estimates  for  maintenance 
have  been  set  forth  in  House  Document  No.  1;  those  for  capital 
outlays  and  new  purposes  in  House  Document  No.  2.  Under  the 
legislative  rules  all  appropriation  bills  have  been  reported  to  the 
House  by  the  Committee  on  Ways  and  Meaps,  and  they  then 
followed  the  usual  course  of  legislation.  This  procedure  has  enabled 
the  Legislature  to  act  with  some  intelligence  in  the  making  of  ap- 
propriations.    The  sound  policy  of  referring  all  money  bills  to  one 


66 

committee  has  centralized  financial  authority  and  responsibility,  and 
has  to  some  degree  offset  the  lack  of  a  budget  system. 

Recent  Budget  Legislation  in  Massachusetts.  —  The  last  two  years 
have  seen  marked  progress  toward  improved  financial  methods. 
Until  1917  a  large  amount  of  revenue  —  more  than  $5,000,000 
annually,  derived  from  special  funds  —  was  expended  under  standing 
statutory  authority,  without  estimate  or  appropriation.  Chapter  277 
of  the  General  Acts  of  1917  brought  these  funds  under  legislative 
control  by  requiring  detailed  estimates  and  annual  appropriations. 
The  funds  themselves  were  in  the  main  abolished  and  the  moneys 
therein  transferred  to  the  general  treasury. 

The  Legislature  of  1917  also  created  a  Joint  Special  Committee 
on  Finances  and  Budget  Procedure,  which  submitted  to  the  Legis- 
lature of  1918  two  reports: 

(1)  House  Document  No.  17,  a  Budget  Plan  for  1918,  the  first  complete 
State  budget,  it  is  beHeved,  ever  submitted  in  Massachusetts. 

(2)  House  Document  No.  1185,  the  report  of  the  committee  with  its  recom- 
mendations for  legislation. 

Defects  in  Massachusetts  Procedure.  —  The  Joint  Committee  in  its 
report  called  attention  to  grave  defects  in  the  procedure  in  vogue  in 
past  years: 

(1)  The  lack  of  adequate  revision  of  departmental  estimates. 

(2)  The  lack  of  any  provision  for  the  preparation  of  a  compre- 
hensive financial  plan  or  budget,  and  the  consequent  difficulty  of 
the  Ways  and  Means  Committee  in  considering  financial  measures 
piecemeal  throughout  the  session. 

(3)  The  entire  absence  of  executive  responsibility,  the  Governor 
having  no  connection  with  the  preparation  of  estimates,  and  his 
authority  and  responsibility  being  limited  to  approval  or  disap- 
proval of  appropriation  bills  after  enactment. 

(4)  The  unusually  large  number  of  appropriation  acts,  for  ex- 
ample, one  hundred  and  thirty-six  in  1915. 

(5)  The  lack  of  constitutional  authority  in  the  Governor  to  veto 
or  reduce  items  in  appropriation  bills. 

(6)  The  large  number  of  private  bills  introduced  by  members  of 
the  Legislature  which  call  for  public  appropriations  and  which  have 
no  relation  to  the  departmental  estimates. 


67 

The  Act  of  1918.  —  The  Joint  Committee  submitted  a  bill  which 
became  law  as  chapter  244  of  the  General  Acts  of  1918:  "An  Act  to 
establish  a  Budget  System  for  the  Commonwealth."^  This  act  pro- 
vides that  the  heads  of  all  State  activities  shall  submit  to  the  Super- 
visor of  Administration,  on  or  before  October  15,  in  each  year, 
their  estimates  for  the  coming  year,  and  that  the  Auditor  shall 
compile  the  same,  together  with  a  statement  of  "his  estimates  for 
the  ordinary  and  other  revenue  of  the  Commonwealth"  and  "a 
statement  of  the  free  and  unencumbered  cash  balance  and  other 
resources  available  for  appropriation." 

The  act  further  provides,  in  section  4,  that  — 

The  supervisor  of  administration  shall  study  and  review  aU  estimates  and 
shall  .  .  .  prepare  a  budget  for  the  Governor  setting  forth  such  recommenda- 
tions as  the  Governor  shall  determine  upon.  .  .  .  The  budget  shall  be  submitted 
by  the  Governor  to  the  General  Court  not  later  than  the  second  Wednesday  in 
January  of  each  year  and  it  shall  embody  aU  estimates,  requests  and  recom- 
mendations for  appropriations  or  other  authorizations  for  expenditures  from  the 
treasury  of  the  commonwealth.  The  budget  shall  be  classified  and  designated  so 
as  to  show  separately  estimates  and  recommendations  for:  (a)  expenses  of 
administration,  operation  and  maintenance;  (6)  deficiencies  or  overdrafts  in 
appropriations  of  former  j^ears;  (c)  new  construction,  additions,  improvements 
and  other  capital  outlay;  (rf)  interest  on  the  public  debt  and  sinking  fund  and 
serial  bond  requirements;  and  (e)  all  requests  and  proposals  for  expenditures  for 
new  projects  and  other  undertakings;  and  shall  include  in  detail  definite  recom- 
mendations of  the  governor  relative  to  the  amounts  which  should  be  appro- 
priated therefor.  The  budget  shall  also  include  definite  recommendations  of 
the  governor  as  to  the  financing  of  the  expenditures  recommended  and  the 
relative  amounts  to  be  raised  from  ordinary  revenue,  direct  taxes  or  loans.  All 
appropriations  based  upon  the  budget  to  be  paid  from  taxes  or  revenue  shall 
be  incorporated  in  a  single  bill  to  be  designated  the  general  appropriation  bill. 

This  act  will  create  a  complete  budget  system  and  will  obviate 
many  of  the  defects  in  the  present  procedure.  A  constitutional 
amendment,  however,  will  be  required  to  give  authority  to  the  Gov- 
ernor to  disapprove  items  in  appropriation  bills.  The  Joint  Special 
Committee  pointed  out  this  fact  in  its  report  (House  Document 
No.  1185,  page  23),  as  follows: 

The  lack  of  this  power  in  the  Executive  has  not  been  severely  felt  in 
Massachusetts  as  yet  owing  to  the  fact  that  almost  every  appropriation  has 
been  reported  in  a  separate  bill.    Under  a  budget  sj'stem  with  but  few  appro- 

'  For  the  text  of  this  act  see  Appendix  E. 


68 

priation  bills,  the  Executive  must  have  this  right  to  disapprove  items;  if  not 
he  may  be  obUged  to  veto  an  entire  bill  merely  on  account  of  one  item  which 
does  not  meet  his  approval.  Without  this  right  in  the  Executive  no  budget 
system  can  be  wholly  successful.  A  constitutional  amendment  will  be  required 
to  bring  this  about.  The  Committee  expresses  the  hope  that  the  resolution 
reported  by  the  Finance  Committee  of  the  Convention  will,  with  slight  per- 
fecting amendments,  be  adopted  by  that  body  and  ratified  by  the  people. 

The  scope  of  the  act  is  also  limited  in  two  ways.  It  does  not 
curtail  the  power  of  the  Legislature  to  increase  items  in  the  budget, 
nor  to  enact  subsequent  financial  legislation;  nor  does  it  curb  the 
evil  of  private  appropriation  bills,  which  in  the  year  1917  contained 
requests  for  more  than  $26,000,000  entirely  beyond  the  departmental 
estimates  in  House  Documents  Nos.  1  and  2,  and  therefore  entirely 
beyond  the  scope  of  the  executive  budget  created  by  the  act.^ 

IV.  Budget  Laws  providing  for  a  Budget  Board  or  Committee. 
In  the  second  group  of  States  that  have  provided  for  budget  sys- 
tems by  statute,  the  budget  is  drawn  up  and  initiated  by  a  board  or 
committee  w^hich  usually  includes  the  leading  executive  officers  of  the 
State  and  the  chairman  of  the  finance  committees  of  the  Legislature. 
This  is  the  plan  used  in  Wisconsin  and  originally  in  New  York, 
which  were  the  first  States  to  adopt  budget  systems,  also  in  Connect- 
icut, North  Dakota,  South  Dakota,  Tennessee,  Vermont  and  Wash- 
ington. The  underlying  idea  of  this  scheme  is  that  the  budget  will 
have  greater  weight  before  the  Legislature  if  it  is  initiated  by  a 
joint  body  of  administrative  and  legislative  ofiicers. 

Wisconsin  and  Louisiana  —  Board  of  Public  Affairs. 

Wisconsin  provided  in  1911  for  a  Board  of  Public  Affairs,  one  of 
the  duties  of  w^hich  is  to  prepare  a  compilation  of  estimates  for  the 
Legislature.  This  board  is  a  rather  large  body  consisting  of  nine 
members  —  the  Governor,  the  Secretary  of  State,  the  chairmen  of 
the  finance  committees  of  the  Senate  and  House,  the  Speaker  of  the 
Assembly,  the  President  pro  tempore  of  the  Senate  and  three  members 
appointed  by  the  Governor.^ 

The  Board  of  Public  Affairs  did  not  at  first  attempt  to  make  recom- 
mendations in  the  budget,  but  merely  compiled  the  requests  of  the 

1  Since  the  above  account  was  prepared,  a  budget  system  has  been  established  in  Massachusetts  by 
constitutional  amendment.     See  Appendix  F. 

2  Session  Laws  of  Wisconsin,  1011,  chapter  583.     See  also  Session  Laws  of  1913,  chapter  728,  and  Session 
Laws  of  1915,  chapter  606. 


69 

various  departments.^  In  1915,  however,  an  act  was  passed  giving 
the  Board  express  power  to  make  recommendations  and  providing 
that  the  budget  should  include  any  recommendations  which  the 
Governor-elect  might  wish  to  submit. 

In  1916  Louisiana  passed  a  law  creating  a  Board  of  State  Affairs 
and  granting  it  much  the  same  powers  in  regard  to  the  submission  of 
the  budget  that  the  Wisconsin  board  now  has.  The  Louisiana  Board 
of  State  Affairs,  however,  is  much  smaller  than  that  in  Wisconsin, 
consisting  of  only  thi-ee  members,  all  of  whom  are  appointed  by  the 
Governor.^ 

Connecticut  —  State  Board  of  Finance.^ 
The  law  establishing  the  Connecticut  budget  system  was  enacted 
in  1915,  and  provides  that  the  budget  shall  be  prepared  and  recom- 
mended by  the  State  Board  of  Finance,  which  consists  of  the  Treas- 
urer, Comptroller,  Tax  Commissioner  and  three  citizen  members  ap- 
pointed for  six  years  by  the  Governor.  There  are  no  provisions  as 
to  the  form  or  contents,  and  according  to  the  terms  of  the  statute 
the  budget  is  little  more  than  a  compilation  of  requested  appropria- 
tions with  recommendations  by  the  Board  of  Finance. 

Joint  Committee  on  Appropriations.  —  A  special  feature  of  the 
Connecticut  law  is  the  provision  that  the  budget  when  submitted  to 
the  Legislature  shall  be  considered  by  a  joint  standing  committee 
on  appropriations.  The  statute  does  not  require  that  the  budget 
shall  be  accompanied  by  a  proposed  bill,  but  provision  is  made  that 
all  bills  and  joint  resolutions  making  appropriations  must  be  re- 
ferred to  this  joint  committee  before  passage  unless  such  reference 
is  dispensed  with  by  a  two-thirds  vote  of  each  branch  of  the  Legis- 
lature. During  the  sessions  of  the  Legislature  the  Board  of  Finance 
sits  with  the  joint  committee  on  appropriations  in  considering  the 
various  bills  and  resolutions  that  are  referred  to  that  committee.  ^ 
The  purpose  of  this  provision  is  to  centralize  the  handling  of  appro- 
priations in  a  single  committee  rather  than  to  scatter  the  work 
among  a  large  number  of  authorities,  as  is  usually  the  case. 

1  Frederick  A.  Cleveland,  "Budget  Idea  in  the  United  States,"  in  Annals  of  the  American  Academy  of 
Political  and  Social  Science,  November,  1915,  p.  31. 

2  Acts  of  Louisiana,  1916,  act  No.  140. 

'  Public  Acts  of  Connecticut,  1915,  chapter  302. 

*  The  Board  of  Finance  and  the  joint  committee  on  appropriations  may  also  originate  and  report  any 
bill  or  joint  resolution  which  they  may  deem  necessary. 


70 


North  Dakota  and  South  Dakota  —  Budget  Board. 

The  North  Dakota  budget  law,  which  was  enacted  m  1915/ 
provides  for  a  State  Budget  Board  of  seven  members,  —  the  Gov- 
ernor, Lieutenant-Governor,  the  two  chairmen  of  the  appropriation 
committees  of  the  Senate  and  House  of  the  preceding  legislative 
Assembly,  the  Speaker  of  the  House,  the  State  Auditor  and  the 
Attorney  General.  The  Governor  is  chairman  of  the  Board  and  the 
State  Auditor  is  the  secretary. 

The  usual  provisions  are  found  requiring  that  heads  of  depart- 
ments, commissions  and  institutions  shall  submit  their  estimates 
to  the  Auditor,  who  in  turn  presents  them  to  the  Budget  Board. 
After  the  estimates  have  been  received  by  the  Budget  Board,  it  then 
submits  to  the  Legislature,  not  later  than  the  tenth  day  of  the 
session,  a  tentative  budget  showing  the  appropriations  which  it  recom- 
mends and  the  anticipated  revenues  to  meet  the  same.  The  original 
requests  of  the  various  officers  and  boards  must  be  included  in  every 
case  for  the  purpose  of  comparison  with  the  amounts  allowed  by  the 
Budget  Board. 

Form  and  Contents.  —  The  law  requires  that  the  budget  shall  con- 
tain not  only  estimates  for  current  expenses  but  also  for  the  pay- 
ment of  interest  upon  the  funded  debt  of  the  State  and  for  the 
general  sinking  funds,  the  intention  being  to  make  the  budget  in- 
clude all  of  the  annual  charges  upon  the  treasury. 

There  is  no  provision  requiring  the  submission  of  an  appropria- 
tion bill  as  a  part  of  the  budget,  nor  are  there  any  limitations  upon 
the  Legislature  in  dealing  with  the  proposed  appropriations. 

In  1917  the  Legislature  of  South  Dakota  created  a  Budget  Board 
with  powers  and  duties  similar  to  that  of  North  Dakota.  This 
Board  is  composed  of  the  Governor-elect,  the  Auditor,  the  chairman 
of  the  Tax  Commission,  and  the  chairmen  of  the  Senate  and  House 
committees  on  appropriations.  Any  vacancy  is  to  be  filled  by  the 
Governor-elect.^ 

Budget  Law  of  Washington  —  State  Board  of  Finance.^ 
The  budget  law  of  Washington,  which  was  adopted  in  1915,  is  in 
general  similar  to  that  of  North  Dakota,  the  chief  difference  being 

'  Laws  of  North  Dakota,  1915,  chapter  61. 

2  Laws  of  South  Dakota,  1917,  chapter  354. 

3  Session  Laws  of  Washington,  1915,  chapter  126. 


71 

that  provision  is  made  for  a  small  ex-ofRcio  board  of  three  members 
instead  of  a  large  body,  as  in  the  former  State.  The  preparation  of 
the  budget  is  intrusted  to  a  State  Board  of  Finance,  consisting  of  the 
Governor,  the  State  Auditor  and  the  State  Treasurer. 

One  of  the  important  features  of  the  Washington  law  is  the  require- 
ment that  copies  of  the  budget  shall  be  mailed  to  each  member  of  the 
Legislature  at  least  fifteen  days  before  the  convening  of  that  body 
instead  of  at  the  beginning  of  the  session,  as  is  the  practice  in  most  of 
the  other  States.  The  purpose  of  this  arrangement  is  to  give  the 
members  more  time  to  become  acquainted  with  matters  that  are  to 
be  referred  to  them. 

Vermont  Budget  Law  —  State  Budget  Committee.^ 
Vermont  is  the  only  New  England  State  except  Connecticut  which 
has  adopted  a  budget  system  for  the  control  of  public  expenditures. 
A  law  enacted  in  1915  provides  for  a  State  Budget  Committee  com- 
posed of  the  Governor,  Auditor,  State  Treasurer,  chairman  of  the 
finance  committee  of  the  Senate,  chairman  of  the  appropriation  com- 
mittee of  the  House,  chairman  of  the  ways  and  means  committee  of 
the  House  and  the  State  Purchasing  Agent.  The  Governor  is  chair- 
man of  the  committee  and  the  Auditor  is  the  secretary. 

Presentation  and  Preparation  of  Estimates.  —  All  heads  of  depart- 
ments, boards,  institutions,  etc.,  are  required  during  the  month  of 
October  to  report  to  the  secretary  of  the  Budget  Committee  the 
amounts  required  by  their  departments  for  the  ensuing  two  years  and 
the  amounts  appropriated  and  expended  for  the  current  year  and  for 
the  two  preceding  fiscal  periods.  All  estimates  are  to  be  presented 
on  blanks  prepared  and  furnished  by  the  Committee  and  shall  show 
the  needs  of  the  department  under  the  heads  of  (1)  salaries  and 
wages;  (2)  permanent  improvements;  (3)  all  other  expenditures; 
and  (4)  contingencies.  Provision  is  further  made  that  in  addition  to 
requests  from  State  officials,  the  Budget  Committee  shall  also  receive 
statements  from  any  individual,  corporation,  association  or  institu- 
tion desiring  an  appropriation.  Any  person  having  a  claim  against 
the  State  is  likewise  requested  to  file  a  statement  of  the  amount  of 
such  claim,  which  shall  be  included  in  the  budget. 

An  attempt  is  made  to  eliminate  the  practice  of  filing  requests  for 
appropriations  directly  with  the  Legislature  by  including  the  limita- 

'  Acts  and  Resolves  of  Vermont,  1915,  No.  26,  pp.  87-91. 


72 

tion  that  "no  State  officer,  department  or  institution  shall  apply  to 
the  Legislature  for  any  appropriation  unless  the  request  for  the  same 
has  been  filed  with  the  secretary  of  the  (Budget)  Committee  in 
accordance  with  the  provisions  .of  this  act;  unless  the  occasion  for 
such  request  shall  have  arisen  subsequent  to  the  first  day  of  Novem- 
ber in  the  year  next  preceding  the  session  of  the  Legislature  at  which 
the  same  is  requested."^ 

Review  of  Estimates.  —  As  soon  as  all  requests  have  been  filed,  the 
Budget  Committee  reviews  the  same  and  prepares  a  budget  which 
shows  the  items  estimated  to  be  necessary  for  each  department  for 
the  ensuing  biennial  period,  together  with  an  itemized  statement  of 
the  revenues  which  it  is  expected  will  be  received.  The  Committee 
may  revise,  increase,  decrease  or  eliminate  the  sum  requested  by  any 
department,  but  wherever  there  is  any  difference  between  the  re- 
quests filed  by  a  department  and  the  recommendations  of  the  Com- 
mittee, the  Committee  is  required  to  give  its  reasons  for  such 
differences.  In  order  that  the  Legislature  may  have  complete  data 
upon  which  to  base  its  action,  provision  is  made  that  the  tentative 
budget  shall  include  a  statement  of  the  expenditures  of  each  depart- 
ment for  the  current  fiscal  period  and  the  two  preceding  periods,  and 
also  an  itemized  statement  of  the  amounts  of  all  unexpended  balances 
of  former  appropriations. 

The  budget  report,  when  completed,  must  be  printed  and  sent  to 
each  member-elect  of  the  incoming  Legislature  and  to  the  clerk  of 
each  town  before  December  10;  and  when  the  Legislature  con- 
venes and  has  organized,  it  shall  be  presented  to  the  newly  organized 
committee  on  the  budget. 

Final  Revision  and  Submission  of  Budget.  —  Since  the  houses  of 
the  incoming  Legislature  may  appoint  new  chairmen  of  the  com- 
mittees on 'finance,  ways  and  means,  and  appropriations,  and  thus 
change  the  membership  of  the  budget  committee  which  drew  up  the 
tentative  budget,  the  act  provides  that  the  newly  formed  Budget 
Committee  shall  have  power  to  review  the  budget  as  originally  pre- 
pared. With  this  end  in  view,  provision  is  made  that  the  newly 
formed  Budget  Committee  shall  at  the  beginning  of  the  legislative 
session  receive  the  tentative  budget  from  the  outgoing  committee 
and  after  examination  shall  make  such  revision  as  it  deems  ad- 
visable and  draw  up  a  consolidated  statement  of  the  estimated  in- 
come and  expenditures  as  finally  agreed  upon. 

I  Acts  mid  Resolves  of  Vermont,  1915,  No.  26,  sect.  6. 


73 

Although  there  is  no  requirement  that  a  general  appropriation  bill 
should  accompany  the  budget,  it  is  provided  that  the  Budget  Com- 
mittee shall,  as  soon  as  the  time  for  the  introduction  of  measures  in 
the  Legislature  has  expired,  prepare  a  schedule  of  all  amounts  con- 
templated to  be  appropriated  by  the  various  bills  introduced  to  that 
date,  together  with  the  recommendations  of  the  Budget  Committee , 
as  to  the  advisability  of  the  same.  As  soon  as  the  Legislature  has 
disposed  of  the  proposed  appropriations,  such  of  them  as  have  been 
passed  shall  be  included  by  the  Budget  Committee  in  a  single  budget 
bill,  which  shall  contain  all  the  expenditures  of  the  State  for  the 
ensuing  biennial  period,  and  which  shall  be  presented  to  the  Legisla- 
ture for  its  consideration,  revision  and  final  passage.  Thus  it  is  seen 
that  all  appropriations  are  brought  together  into  a  consolidated 
appropriation  act  instead  of  being  scattered  among  a  number  of 
separate  statutes,  as  is  done  in  Massachusetts. 

New  York  Budget  Laic,  1916} 

The  recent  New  York  budget  system  presents  some  points  of 
difference  from  those  of  the  other  States  described  above.  After 
experimenting  with  a  board  of  estimate  and  apportionment,  some- 
what similar  to  that  of  Wisconsin,  the  New  York  Legislature  in  1916 
adopted  a  budget  law  which  merely  strengthens  the  ordinary  legisla- 
tive process  of  dealing  with  appropriations. 

The  authorities  charged  with  the  preparation  of  the  budget  in  New 
York  are  the  Finance  Committee  of  the  Senate  and  the  Ways  and 
Means  Committee  of  the  Assembly.  These  committees  acting  jointly 
or  separately  are  required  not  later  than  March  15  to  prepare  the 
budget  of  annual  expenditures  and  revenues  and  submit  it  to  their 
respective  houses.  Provision  is  also  made  that  the  Governor  shall 
likewise  submit  to  each  house  of  the  Legislature  a  statement  of  the 
total  amount  of  appropriations  desired  by  each  department,  commis- 
sion, oflEice,  etc.,  and  may  make  such  recommendations  as  he  sees  fit 
as  to  additions  or  reductions.  The  chief  budget-making  authorities, 
however,  are  the  Finance  Committee  and  the  Committee  on  Ways 
and  Means.  The  part  given  to  the  Governor  is  no  more  than  he  al- 
ready possessed,  and  the  responsibility  for  the  preparation  and  rec- 
ommendation of  the  budget  is  assigned  to  the  legislative  committees. 

1  Laws  of  New  York,  1916,  chapter  130. 


74 

Staff  Assistance.  —  In  order  that  the  two  committees  may  perform 
the  functions  of  a  budget  committee,  the  law  provides  that  they  shall 
be  continued  during  the  recess  of  the  Legislature;  that  their  respec- 
tive chairmen  may  appoint  sub-committees  to  perform  such  duties  as 
may  be  prescribed,  and  that  each  committee  shall  have  a  special 
staff,  the  duties  of  which  are  to  compile  information  and  data,  make 
investigations  and  examinations,  and  aid  the  committees  generally  in 
the  preparation  of  the  annual  budget  and  in  the  performance  of  their 
other  duties. 

Legislative  Procedure  on  Appropriation  Measures.  —  After  the  esti- 
mates have  been  received  and  adjusted,  the  committees  are  required 
to  supplement  them  with  a  single  bill  providing  for  the  appropriations 
that  are  recommended.  The  law  goes  into  considerable  detail  as  to 
the  procedure  according  to  which  appropriation  bills  shall  be  passed, 
and  it  is  in  this  respect  that  the  New  York  system  is  superior  to 
those  of  most  other  States  with  the  exception  of  Maryland. 

In  the  first  place  the  appropriation  bill  must  remain  before  the 
Committee  of  the  Whole  of  the  Senate  and  on  the  order  of  second 
reading  in  the  Assembly  for  its  consideration  at  least  five  full  legisla- 
tive days,  and  on  each  of  these  days  shall  be  the  special  order  of  the 
day.  All  meetings  of  either  house  for  the  consideration  of  the  ap- 
propriation bill  must  be  open  to  the  public. 

The  New  York  budget  law  also  differs  from  those  of  the  other 
States  in  placing  limitations  on  the  Legislature.  It  is  provided  that 
while  the  bill  is  before  the  Committee  of  the  Whole  of  the  Senate  or 
on  the  order  of  second  reading  in  the  Assembly,  it  may  be  amended 
either  by  inserting  additional  items  or  by  increasing,  reducing  or 
eliminating  items,  but  on  third  reading  no  amendments  are  in  order 
except  to  reduce  or  eliminate  an  item  without  unanimous  consent. 
The  purpose  of  these  provisions  is  to  give  the  appropriation  measures 
ample  consideration  and  publicity  and  to  prevent  the  practice  of 
"tacking"  on  measures  to  the  general  appropriation  bill. 

Illinois  Budget  System.^ 
The  State  of  Illinois  in   1913   attacked   the  problem   of  budget- 
making  from  a  point  of  view  somewhat  different  from  that  of  the 
typical  budget  system.     In  that  year  the  General  Assembly  adopted 

>  Annals  of  American  Academy  of  Political  and  Social  Science,  November,  1915,  John  A.  Fairlie,  "  Budget 
Methods  in  Illinois,"  pp.  85-90;  and  Finley  F.  Bell,  "Illinois  Budget,"  pp.  73-84.  See  also  Illinois  Budget, 
1915-16. 


75 

an  act  creating  a  Legislative  Reference  Bureau  and  assigned  to  that 
bureau  the  duty  of  preparing,  printing  and  distributing  a  detailed 
budget  for  the  use  of  the  Legislature.  Although  this  marked  a  step 
in  the  proper  direction,  the  first  budget  which  was  prepared  was  a 
mass  of  detailed  items  not  very  well  classified  and  more  likely  to 
bewilder  than  to  enlighten  the  appropriation  committees.^ 

At  the  session  of  the  General  Assembly  in  1917  an  administra- 
tive code  was  enacted  which  displaced  the  old  system  and  provided 
for  a  more  complete  centralization  in  the  matter  of  budget-making. 
According  to  this  act,  which  became  effective  on  July  1,  1917,  the 
newly  created  Department  of  Finance  under  the  supervision  of  a 
director  appointed  by  the  Governor  is  given  the  duty  of  revising 
the  estimates  of  the  various  departments  and  preparing  a  budget 
which  will  be  submitted  to  the  General  Assembly  by  the  Governor  at 
the  beginning  of  each  biennial  session.^ 

Oregon  Budget  Law.^ 

Oregon,  has  also  made  some  advance  in  furnishing  the  Legislature 
with  more  complete  information  as  to  appropriations,  although  not 
possessing  a  complete  budget  system. 

Under  the  Oregon  statute,  which  was  enacted  in  1913,  the  heads  of 
departments  are  required  to  file  their  requests  for  appropriations 
with  the  Secretary  of  State  who  prepares  the  budget.  The  law  does 
not  give  the  Secretary  authority  to  make  recommendations,  but 
merely  directs  him  to  compile  the  estimates  in  systematic  form,  to- 
gether with  comparative  data.  The  Secretary  submits  his  tabulation 
to  the  members  of  the  Legislature  and  to  the  Governor,  and  the 
Governor  is  also  required  to  present  the  tabulation  to  the  members 
of  the  Legislature  with  such  recommendations  as  he  deems  proper. 
Thus  the  Oregon  law  makes  the  Secretary  of  State  responsible  for  the 
preparation  and  tabulation  of  estimates  and  their  initial  submission 
to  the  Legislature,  but  provides  that  the  Governor  shall  also  trans- 
mit the  budget  wuth  such  general  recommendations  as  he  personally 
thinks  advisable. 

'  Annals  of  American  Academy  of  Political  and  Social  Science,  November,  1915,  John  A.  Fairlie, 
"Budget  Methods  in  Illinois,"  pp.  88-90. 

'  "The  Civil  Administrative  Code,"  enacted  by  the  Illinois  General  Assembly  and  approved  March 
7,  1917,  sects.  37-38,  Lau-s  of  Illinois,  1917,  p.  36. 

5  General  Laivs  of  Oregon,  1913,  chapter  284.  Also  Estimate  of  Expenditures  (Budget),  State  of  Oregon, 
1915-16.    Also  letters  from  Mr.  T.  B.  Kay,  State  Treasurer,  August  30,  1916. 


76 


The  Budget  Comviission  of  Tennessee.^ 
In  1917  a  bill  drawn  up  by  the  State  Treasurer  was  enacted  by  the 
Legislature  of  Tennessee  bj'  which  act  there  was  established  a  State 
Budget  Commission  composed  of  the  Governor,  the  Comptroller, 
the  Treasurer,  the  Secretary  of  State  and  the  Auditor.  The  Com- 
mission is  required  to  make  biennially  a  survey  of  all  State  offices, 
departments  and  institutions  and  may  require  the  production  of 
papers  and  the  attendance  of  witnesses.  Eateh  State  officer  or  or- 
ganization is  required  to  submit  to  the  Commission  before  Decem- 
ber 1  biennially  a  statement  of  receipts  and  expenditures  during  the 
past  two  years  and  an  estimate  of  its  expenditures  and  revenues  for 
the  next  two  years.  At  the  same  time  the  Comptroller  is  required  to 
submit  to  the  Governor  a  statement  showing  each  available  appropri- 
ation balance  and  the  receipts  and  expenditures  of  each  appropria- 
tion account  for  the  preceding  two  years.  All  persons  having  claims 
against  the  State  which  require  legislative  action  are  required  to 
present  them  to  the  Comptroller,  with  a  statement  of  the  amount 
and  the  facts  on  which  they  are  based. 

The  Tennessee  budget  law  contains  several  features  not  found  in 
the  laws  of  other  States.  The  Budget  Commission  is  required  to 
hold  public  hearings,  and  shall  invite  the  Governor-elect  and  mem- 
bers of  the  Legislature  to  attend.  It  shall  prepare  a  tentative  budget 
and  send  printed  copies  to  each  member  of  the  Legislature.  Later 
when  the  Legislature  assembles,  the  Governor  as  chairman  of  the 
Budget  Commission  is  to  transmit  the  budget  in  its  final  form.  This 
shall  be  considered  at  joint  public  sessions  of  the  appropriation  com- 
mittees of  the  two  houses,  and  the  Budget  Commission  shall  have  the 
right  to  attend  and  be  heard  on  all  matters  coming  before  such  joint 
sessions. 

V.    The  Boston  Segregated  Budget. 

American  cities  have  been  much  more  radical  than  the  States  in 
introducing  budget  methods,  and  since  the  financial  problems  of  a 
large  metropolitan  city  are  somewhat  similar  to  those  of  the  State 
a  brief  review  of  the  new  segregated  budget  system  of  Boston  will 
perhaps  be  of  some  value. 

Mayor  initiates  Budget.  —  The  Boston  Charter  Amendments  of 
1909  establish  an  "executive  budget,"  the  provision  being  that  "all 

'  Public  Acta  of  Tennessee,  1917,  chapter  139. 


77 

appropriations,  other  than  for  school  purposes,  to  be  met  from 
taxes,  revenue  or  any  source  other  than  loans  shall  originate  with 
the  mayor,  who  within  thirty  days  after  the  beginning  of  the  fiscal 
year  shall  submit  to  the  city  council  the  annual  budget  of  the  current 
expenses  of  the  city  and  county,  and  may  submit  thereafter  supple- 
mentary budgets  until  such  time  as  the  tax  rate  for  the  year  shall 
have  been  fixed." 

The  mayor  not  only  initiates  the  budget,  but  the  power  of  the 
council  in  considering  the  same  is  somewhat  restricted.  According 
to  the  charter,  the  council  may  reduce  or  reject  any  item  in  the 
budget,  but  may  not  increase  or  add  to  the  same  without  the  mayor's 
consent. 

Lump-sum  Method.  —  Prior  to  1916  the  method  of  preparing  the 
annual  budget  was  inadequate  to  secure  proper  control  over  ex- 
penditures. Although  uniform  estimate  sheets  were  provided  for, 
some  departments  did  not  use  them,  on  the  ground  that  they  did 
not  meet  their  requirements,  and  presented  their  requests  in  some 
other  form.  The  department  heads  were  not  fully  examined  as  to 
their  estimates,  and  competent  analyses  were  not  made  of  the  same. 
Moreover,  the  examinations  that  were  made  were  generally  with 
reference  only  to  the  total  amounts  requested  and  not  to  the  items 
in  detail.  The  greatest  defect  was  that  appropriations  were  made 
in  lump  sum  instead  of  itemized  form.  ^ 

The  "lump  sum"  budget  system  as  used  in  Boston  prior  to  1916 
disclosed  many  shortcomings.  It  afforded  no  real  protection  against 
the  use  of  funds  for  purposes  other  than  those  for  which  they  were 
granted,  and  did  not  prove  a  dependable  check  upon  the  tendency 
of  department  heads  to  exceed  their  appropriations.  ^ 

New  Segregated  Budget.  —  The  weakness  of  the  "lump  sum" 
method  of  appropriating  funds  was  recognized,  with  the  result  that 
a  special  budget  commission  was  appointed  by  the  mayor.  In  Octo- 
ber, 1915,  this  commission  recommended  the  establishment  of  a 
segregated  budget  system  which  was  adopted  and  put  into  operation 
commencing  with  the  fiscal  year  1916.  ^ 

Under  the  new  system  provision  is  made  for  a  set  of  uniform 
estimate  sheets  to  be  filled  out  by  the  heads  of  departments  or  divi- 
sions showing  their  requests  for  appropriations  itemized  under  the 

1  "  Report  of  Boston  Finance  Commission  on  Segregated  Budget  System,"  Boston  City  Record,  1914, 
pp.  1048-1050. 

»  Report  of  Commission  on  Form  of  the  Annual  Budget,  Boston,  Mass.,  October  1,  1915. 


78 

general  headings  of  personal  service,  service  other  than  personal, 
equipment,  supplies,  materials,  special  items  and  incidental  ex- 
penditures, together  with  comparative  data  as  to  the  appropriations 
and  expenditures  of  the  previous  year. 

Revision  of  Estimates.  —  As  soon  as  the  estimate  sheets  have  been 
received  they  are  gone  over  carefully  by  the  budget  commissioner 
and  mayor  and  revised  so  as  to  bring  the  total  within  the  exact 
amount  that  can  be  raised  under  the  law.  The  estimates  are  then 
put  in  the  form  of  an  appropriation  ordinance  and  presented  to  the 
city  council  where  they  are  considered  by  the  council  sitting  as  the 
committee  on  appropriations. 

The  Finance  Commission,  through  its  investigators,  studies  each 
department's  estimates  as  revised  by  the  mayor  and  sends  to  the 
city  council  a  typewritten  report  on  each  item.  With  these  reports 
at  hand  the  council  holds  hearings  and  questions  the  heads  of  the 
departments,  or  their  representatives  on  each  item,  sometimes  at 
great  length.  In  1916  the  council  also  had  the  services  of  a  special 
investigator  whose  duty  it  was  to  look  up  any  facts  or  information 
which  the  members  of  the  council  desired.  When  all  the  department 
heads  had  been  heard  and  a  counter  report  from  them  received  in 
answer  to  the  criticisms  of  the  Finance  Commission,  the  committee 
on  appropriations  went  through  the  schedules  other  than  the  payroll 
schedule,  cutting  off  as  much  as  it  saw  fit.  The  payroll  schedule  was 
then  reduced  to  the  amount  which  it  was  thought  would  bring  it 
within  the  power  of  the  department  head  to  operate  his  force  efl&- 
ciently  and  economically.  The  budget  was  then  passed  by  the 
council  and  accepted  by  the  mayor. 

Results.  —  Thus  it  is  seen  that  Boston  has  developed  a  system 
which  provides  for  a  much  greater  degree  of  control  over  expendi- 
tures. After  a  year's  experience  under  the  segregated  budget  the 
administration  and  department  heads  are  almost  unanimous  in  favor 
of  it. 

VI.    Results  under  Budget  Systems. 

Since  most  of  the  budget  laws  have  been  adopted  during  the  last 
two  years  it  is  too  early  to  draw  very  definite  conclusions  as  to  re- 
sults except  in  one  or  two  distances.  Certain  general  tendencies  and 
observations,  however,  may  be  noted. 


79 


Ohio} 

In  Ohio,  which  has  had  about  as  long  an  experience  with  a  budget 
system  as  any  State,  there  appears  to  have  been  considerable  im- 
provement. As  described  above,  the  Governor  is  responsible  for  the 
initiation  of  the  budget.  In  pursuance  of  statutory  authority  he  has 
appointed  an  expert  Budget  Commissioner  to  assemble  information 
and  prepare  the  budget.  In  fact  the  first  budget,  which  was  pre- 
sented in  1915,  was  almost  wholly  the  recommendation  of  the 
Budget  Commissioner,  and  although  the  Governor  made  a  few 
criticisms  and  suggestions  it  was  submitted  to  the  Legislature  as  a 
recommendation  from  the  Commissioner  rather  than  from  the 
Governor.  Experience  showed  that  it  was  a  mistake  not  to  give  the 
budget  more  definite  executive  sanction,  with  the  result  that  the 
1917  budget  was  submitted  directly  by  the  Governor  after  having 
been  prepared  by  the  Budget  Commissioner.^ 

Although  the  budget  is  merely  advisory  in  Ohio  and  does  not  in- 
volve any  limitations  upon  the  Legislature,  it  is  reported  that  the 
finance  committee  accepts  its  recommendations  as  "prima  facie 
evidence  of  the  departments'  needs  and  they  are  increased  only  after 
a  clear  case  has  been  made  by  the  departments  showing  them  to  be 
insufficient.  It  will  be  readily  seen  that  this  in  itself  goes  a  long  w^ay 
towards  securing  economy  and  efficiency  and  stopping  'pork-barrel' 
appropriations."  ^  According  to  the  present  Budget  Commissioner, 
"the  results  obtained  by  the  budget  system  in  this  State  have  been 
specific  appropriations  with  sufficient  flexibility  to  take  care  of  the 
same.  By  this  plan  smaller  appropriations  in  the  aggregate  can  be 
made  for  the  needs  of  the  State  without  impairing  in  any  way  the 
efficiency  of  the  departments  and  institutions."  ^  The  Director  of 
the  Ohio  Institute  for  Public  Efficiency  states  that  "the  first  Budget 
Commissioner  is  reported  to  have  been  able  by  his  review  of  the  de- 
partmental estimates  to  reduce  them  by  almost  a  million  dollars. 
Reductions  of  lesser  amounts  are  reported  to  have  been  made  by  his 
successors."  ^ 

1  Information  as  to  workings  of  Ohio  Budget  received  through  letters  from  E.  M.  FuUington,  Budget 
Commissioner  of  Ohio;  and  from  Wm.  T.  Donaldson,  Assistant  Budget  Commissioner,  August  and 
September,  1916;  from  State  Auditor;  Director  of  Ohio  Institute  for  Public  Efficiency,  Columbus,  Ohio; 
Secretary  of  Cincinnati  Chamber  of  Commerce;  and  Dr.  S.  Gale  Lowrie,  University  of  Cincinnati. 

2  "Executive  Budget,  1917-18,"  submitted  by  Governor  James  M.  Cox. 
'  Communication  from  Assistant  Budget  Commissioner,  August,  1916. 
*  Communication  from  Budget  Commissioner,  September  2,  1916. 

'  Communication  from  R.  E.  Miles,  Director  of  Ohio  Institute  for  Public  Efficiency,  Columbus,  Ohio, 
September  8,  1916. 


80 

On  the  whole,  the  general  opinion  in  regard  to  the  Ohio  budget 
system  is  favorable.  The  chief  criticisms  are  that  the  first  budget 
was  not  made  an  executive  recommendation  as  the  law  intended,  and 
that  the  appropriation  bills  as  finally  enacted  were  over-itemized, 
especially  those  in  regard  to  salaries  and  wages.  The  former  objec- 
tion has  been  removed  by  the  budget  which  Governor  Cox  has 
recently  submitted  to  the  Legislature;  while  the  rigidity  of  itemized 
appropriations  has  been  reduced  by  providing  for  a  system  of 
transfers  under  the  direction  of  a  controlling  board  made  up  of  the 
Budget  Commissioner,  the  Auditor  of  the  State,  the  Attorney 
General,  and  the  chairmen  of  the  finance  committees  of  the  House 
and  Senate. 

Wisconsin. 
In  Wisconsin,  where  the  budget  system  has  been  in  actual  operation 
since  July  1,  1913,  the  Governor's  oflBce  has  the  following  statement 
to  make:^  — 

Prior  to  this  time  (1913)  a  single  department  might  have  one  or  a  dozen 
appropriations  for  the  same  purpose,  as,  for  example,  the  department  would  have 
an  appropriation  for  the  general  running  expenses;  likewise  appropriations  for 
the  salaries  of  the  commissioners  and  another  appropriation  for  the  salaries  of 
clerks..  In  the  case  of  almost  every  department,  board  and  commission,  in 
addition  to  the  appropriations  of  stated  amounts,  they  were  furnished  station- 
ery, office  supplies,  postage,  etc.,  by  the  Superintendent  of  Public  Property. 
In  the  matter  of  printing,  they  were  likewise  required  to  be  furnished  unlimited 
amounts  by  the  State  Printing  Board.  In  consequence  of  this  system,  or  pos- 
sibly lack  of  system,  departments,  boards  and  commissions  were  little  concerned 
with  the  cost  of  printing  or  the  cost  of  stationery  and  office  suppUes,  as  these 
amounts  did  not  appear  charged  against  their  accounts. 

The  budget  plan  aims  to  put  all  State  boards,  departments  and  commissions, 
wherever  practicable,  upon  a  limited  appropriation  basis;  all  expenses  incurred 
by  a  department,  board  or  commission  being  chargeable  to  its  particular  appro- 
priation. Under  the  budget  plan,  appropriations  are  divided  into  three  main 
classes  according  to  the  nature  of  the  expenditure,  namely:  (1)  operation,  to 
cover  the  running  expenses  of  the  board,  department  or  commission;  (2)  capital, 
for  the  purpose  of  new  property;  and  (3)  maintenance,  for  the  upkeep  of  per- 
manent property.  By  making  appropriations  under  these  three  main  headings, 
legislative  control  over  appropriations  is  obtained,  in  that  the  law  does  not 
permit  the  expenditure  of  either  capital  or  maintenance  appropriations  for 
operating  purposes. 

In  speaking  of  the  budget  system  in  general,  it  may  be  stated  that  it  has 
resulted  in  savings  for  the  State  of  Wisconsin  in  that  the  system  demands  greater 

'  Communication  from  the  Secretary  to  Governor  Philipp  of  Wisconsin,  September  9,  1916. 


81 

accountability.  Every  two  years,  the  budget  is  submitted  to  the  Legislature. 
In  this  budget  are  contained  the  actual  disbursements  as  made  from  previous 
appropriations.  The  departments,  knowing  that  they  will  be  called  to  account 
by  the  Legislature,  are,  as  a  rule,  more  careful  to  see  that  the  letter  and  intent 
of  the  law  is  carried  out.  The  Auditor  of  State  can  likewise  make  a  stricter 
audit  of  the  accounts  in  that  he  has  definite  information  before  him  as  to  the 
real  purpose  of  the  appropriation.  Before  a  bill  is  passed  for  payment,  it  is 
determined  whether  or  not  this  particular  expenditure  was  included  in  the  de- 
partment budget. 

The  budget  system  has  introduced  a  reform  in  procedure  which  likewise  results 
in  saving  to  the  State.  Formerly,  during  the  legislative  session,  it  was  the 
custom  for  the  heads  of  departments  to  lobby  for  their  particular  appropriation 
measures.  Tliis  has  been  done  away  with  to  a  very  large  extent.  The  majority 
of  the  departments,  after  their  budgets  have  been  submitted  to  this  office,  pay 
verj^  Uttle  attention  to  the  same  until  they  are  called  to  the  Joint  Finance  Com- 
mittee of  the  Legislature. 

At  the  present  time,  I  think  we  can  say  there  is  not  a  single  department  that 
is  opposed  to  the  budget  system.  We  still  have  problems  before  us  to  be  solved 
in  connection  with  the  system.  It  is  still  a  question  as  to  just  how  rigidly  de- 
partments should  be  tied  up  in  their  appropriations. 

The  Wisconsin  State  Board  of  Control,  which  has  charge  of  the 
fifteen  charitable  and  correctional  institutions  of  the  State,  involving 
the  expenditure  of  a  large  proportion  of  the  total  annual  appropria- 
tions and  the  employment  of  a  great  number  of  persons,  is  of  the 
opinion  that  many  improvements  in  financial  administration  have 
resulted  from  the  introduction  of  the  budget  system.  The  Secretary 
of  the  Board  of  Control  expresses  the  view  that  "the  budget  system 
results  in  a  closer  accounting  and  better  means  of  fixing  responsibil- 
ity. Under  a  budget  system  there  should  be  an  efficient  accounting 
system.  Within  the  last  three  years  we  have  put  in  what  we  believe 
to  be  the  most  modern  accounting  system  for  State  institutions  that 
is  in  existence,  and  we  find  that  the  combined  budget  system  and 
new  accounting  system  work  out  very  satisfactorily. 

"  When  appropriations  are  made  in  a  lump  sum  the  Legislature  has 
no  information  as  to  the  details  or  the  detailed  expenditures.  When 
appropriations  are  made  under  the  budget  system  the  detail  of  the 
budget  shows  the  amount  to  be  expended  in  the  various  departments 
of  the  institutions."  ^ 

On  the  other  hand,  criticism  has  been  made  as  to  the  divided 
responsibility  involved  in  the  Wisconsin  budget  system,  and  also  as 

»  Letter  from  M.  J.  Tappins,  Secretary  of  Wisconsin  State  Board  of  Control,  September  9,  1916. 


82 

to  the  fact  that  the  Board  of  PiibHc  Affairs  in  presenting  the  budget 
for  1915-17  did  not  make  definite  recommendations,  but  merely  tab- 
ulated the  requests  as  filed  with  it.  In  making  the  appropriation  for 
1915-17,  for  example,  it  is  reported  that  the  legislative  committees 
and  the  Governor  attempted  to  outdo  one  another  in  recommending 
retrenchment  with  the  result  that  the  departments  were  granted 
rather  meagre  allowances.  Before  the  1915  session  of  the  Legislature 
had  ended  it  was  necessary,  therefore,  to  provide  for  an  emergency 
fund,  unlimited  in  amount,  from  which  additional  funds  might  be 
drawn  upon  certification  of  a  board  consisting  of  the  Governor,  the 
Secretary  of  State,  and  the  State  Treasurer.^ 

California. 

California  has  not  established  a  budget  system  by  statute,  but  the 
Governor  by  executive  authority  has  introduced  a  plan  which  is  re- 
ported to  have  produced  satisfactory  results. 

The  circumstances  connected  with  the  preparation  of  the  1915-16 
budget  are  of  interest  as  an  illustration  of  the  improvements  that 
have  been  attributed  to  the  introduction  of  a  budget  system.  The 
requests  for  appropriations  as  submitted  by  the  heads  of  departments 
and  institutions  for  the  period  of  1915-16  amounted  to  $17,365,776. 
As  a  result  of  its  review  and  adjustment  the  Board  of  Control  and 
the  Controller  cut  these  requests  to  $15,458,200,  or  a  reduction  of  ap- 
proximately $2,000,000.  Requests  for  special  appropriations  totaled 
$11,334,405,  but  only  $3,981,426  was  recommended  by  the  Board  of 
Control,  or  $7,352,978  less  than  was  asked  for.  This  severe  pruning 
was  a  result  of  a  very  painstaking  investigation,  the  Board  of  Con- 
trol and  the  Controller  always  having  in  mind  the  probable  income 
of  the  State  and  the  needs  of  the  departments.  The  Legislature,  in- 
stead of  adding  to  the  budget  prepared  by  the  Board  of  Control, 
made  a  slight  reduction,  so  that  the  general  and  special  appropriation 
bills  as  finally  passed  by  that  body  totaled  $341,216  less  than  the 
budget  recommendations,  which  in  the  words  of  the  Controller  "was 
hewing  pretty  close  to  the  line."  ^ 

1  Information  obtained  from  typewritten  report  on  file  in  office  of  Massachusetts  Supervisor  of  Admin- 
istration, September,  1916. 

'  John  F.  Neylan,  "  California's  State  Budget,"  in  Annals  of  American  Academy  of  Political  and  Social 
Science,  November,  1915,  pp.  69-72.  Also  letter  from  Mr.  John  S.  Chambers,  State  Controller  of  California; 
and  address  delivered  by  the  Controller  before  the  National  Tax  Association  at  San  Francisco  in  1915. 


83 


Conclusion. 
The  above  summary  of  results  in  those  States  where  budgets  have 
been  actually  prepared  and  submitted  indicates  that  the  following 
has  been  accomplished:  (1)  the  Legislature  is  provided  with  more 
complete  information  as  to  the  needs  and  resources  of  the  State; 
(2)  "logrolling"  has  been  reduced;  (3)  greater  control  over  and  re- 
sponsibility for  expenditures  is  made  possible;  (4)  improved  account- 
ing methods  have  accompanied  the  introduction  of  a  budget  system; 
and  (5)  the  finances  of  the  State  in  general  are  conducted  on  a  more 
businesslike  basis.  Whether  or  not  the  preparation  and  initiation  of 
the  budget  should  be  intrusted  to  the  Governor  alone  or  to  a  board  or 
committee,  and  the  extent  to  w^hich  the  powers  of  the  Legislature 
should  be  restricted  are  open  questions,  but  the  tendency  seems  to  be 
in  the  direction  of  an  "executive  budget,"  which  would  place  the  re- 
sponsibility upon  the  Governor. 


84 


Appendix  A. 


SUMMARY  OF  BUDGET  PROVISIONS. 


State 

Method  of  Establishment. 

Responsibility  for  Initiation 
of  Budget. 

Connecticut, 

Public  Acts  of  1915,  Ch.  302,       . 

State  Board  of  Finance. 

Illinois, 
Iowa,   . 

Lawsof  1917,  Ch.  2, 

Acts  and  Joint  Resolutions  of  1915,  Ch.  74, 

Governor  and  Department  of 

Finance. 
Governor. 

Kansas, 

Session  Laws  of  1917,  Ch.  312, 

Governor. 

Louisiana,    . 

Acts  of  1916,  act  No.  140 

Board  of  State  Affairs. 

Maine, 

Laws  of  1915,  Ch.  299 

Governor  and  Council. 

Maryland,    . 

Constitution,  Art.  Ill,  Sect.  52, 

Governor. 

Massachusetts, 
Minnesota,  . 

General  Acts  of  1918,  Ch.  244;    Constitu- 
tional Amendment,  1918. 
Session  Laws  of  1915,  Ch.  356,    . 

Governor. 
Governor. 

Nebraska,    . 

Laws  of  1915,  Ch.  229 

Governor. 

New  Jersey, 

Acts  of  1916,  Ch.  15 

Governor. 

New  Mexico, 

Lawsof  1917,  Chs.  81,  114, 

Governor. 

New  York,  . 
North  Carolina, 

Laws  of  1916,  Ch.  130 

Public  Laws  of  1917,  Ch.  180,     . 

Committees  on  Finance  and 

Ways  and  Means. 
Legislative  Reference   Libra- 

North  Dakota, 

Laws  of  1915,  Ch.  61,          .... 

Budget  Board. 

Ohio,    . 

Legislative  Acts  of  1913,  p.  658, 

Governor. 

Oregon, 

General  Laws  of  1913,  Ch.  284,  . 

Secretary  of  State. 

South  Dakota, 

Laws  of  1916-1917,  Ch.  354, 

Budget  Board. 

Tennessee,   . 

Public  Laws  of  1917,  Ch.  139,     . 

Budget  Commission. 

Utah,  . 

Laws  of  1917,  Ch.  15 

Governor. 

Vermont, 

Acts  and  Resolves  of  1915,  No.  26,     . 

Budget  Committee. 

Washington, 

Session  Laws  of  1915,  Ch.  126,    . 

State  Board  of  Finance. 

West  Virginia, 

Constitution,  Sect.  51 

Board  of  Public  Works. 

Wisconsin,    . 

Session   Laws  of   1911,  Ch.  583;   Laws  of 
1913,  Ch.  728;  Lawsof  1915,  Ch.  606. 

Board  of  Public  Affairs. 

Filing  of  Estimates.  —  In  all  of  the  States,  the  heads  of  departments,  commis- 
sions, boards  and  institutions  are  required  to  file  estimates  of  appropriations 
with  the  Governor  or  budget  board  or  other  officer.  In  Connecticut,  Maryland, 
New  Mexico,  New  Jersey  and  West  Virginia  not  only  department  heads  but 
also  the  Legislature  and  the  judiciary  must  file  requests. 


85 

In  New  Jersey,  North  Dakota,  Ohio,  Vermont  and  Washington  provision  is 
made  that  all  requests  must  be  presented  on  uniform  blanks  furnished  for  that 
purpose.  In  New  Jersey  and  Vermont  the  information  which  the  estimates  must 
contain  is  more  or  less  definitely  prescribed. 

The  State  Auditor  in  Massachusetts,  New  Jersey,  Ohio  and  Washington  is 
required  to  provide  the  Governor  or  budget  board  with  information  as  to  antici- 
pated revenues  and  other  financial  data,  while  in  Tennessee  this  duty  is  laid 
upon  the  Comptroller. 

Investigation  and  Revision  of  Estimates.  —  After  the  estimates  have  been  re- 
ceived the  Governor  or  budget  board  reviews  them  and  submits  a  budget  of 
annual  appropriations  and  revenue  together  with  recommendations  as  to  the 
same.  An  exception  to  this  rule  is  found  in  Oregon,  where  the  Secretary  of 
State  merely  tabulates  the  estimated  expenditures  and  revenues  without  recom- 
mendation, and  in  North  Carolina,  where  the  Legislative  Reference  Librarian 
performs  a  similar  function.  In  Nebraska,  North  Dakota  and  Vermont,  when- 
ever the  amount  recommended  is  different  from  that  requested  by  the  depart- 
ment or  from  the  amount  appropriated  in  previous  years,  reason  for  such  differ- 
ences must  be  set  forth. 

In  the  laws  of  Connecticut,  Maryland,  Massachusetts,  New  Jersey,  New  York, 
North  Dakota,  Ohio,  Tennessee,  Vermont  and  Washington,  the  budget-making 
authority  is  given  special  powers  of  investigation  and  examination  in  order  to 
determine  the  reasonableness  of  the  various  requests.  In  Connecticut,  North 
Dakota,  Maryland  and  Vermont  public  hearings  may  be  held  at  which  heads  of 
departments  may  appear  to  explain  their  requests.  In  Tennessee  public  hearings 
must  be  held. 

Special  Staff  provided  for.  —  The  New  York  law  provides  for  a  special  staff 
to  assist  the  legislative  committees  in  preparing  the  budget;  while  in  New  Jersey 
the  Governor  may  appoint  State  officers  together  with  not  more  than  two  as- 
sistants to  form  a  special  committee  for  the  purpose  of  assisting  him.  In  most 
of  the  other  States  provision  is  made  that  expert  and  clerical  assistance  may  be 
obtained. 

When  and  how  the  Budget  must  be  submitted  to  the  Legislature.  —  The  usual 
provision  is  that  the  budget  must  be  submitted  at  the  opening  of  the  legislative 
session.  In  the  laws  of  Connecticut,  Iowa,  Kansas,  Massachusetts,  Minnesota, 
North  Dakota,  New  Jersey,  New  York,  South  Dakota,  Tennessee,  Washington 
and  West  Virginia,  the  date  on  or  before  which  the  budget  shall  be  submitted 
is  definitely  specified.  In  most  cases  this  must  be  within  two  weeks  from  the 
commencement  of  the  session;  in  Maryland,  on  the  other  hand,  the  budget  does 
not  have  to  be  submitted  until  twenty  days  after  the  opening  of  the  session, 
and  in  the  case  of  a  newly  elected  Governor  the  time  may  be  extended  to  thirty 
days.  In  Utah  the  Governor  must  submit  the  budget  not  later  than  the  twen- 
tieth day  of  the  session,  in  New  Mexico  not  later  than  the  thirtieth  day,  and 
in  Illinois  not  later  than  four  weeks. 

In  New  Jersey  and  Nebraska  the  budget  is  required  to  be  submitted  in  the 
form  of  a  special  message  from  the  Governor,  thus  giving  it  greater  executive 
sanction.  In  New  Jersey  the  provision  is  that  the  message  "shall  be  in  such 
form  that  it  can  be  easily  understood  by  the  average  citizen." 


86 

Form  and  Content  of  Budget.  —  The  budget  in  every  case  contains  estimates 
of  the  proposed  expenditures  and  anticipated  revenues  for  the  State  during  the 
ensuing  year  or  for  the  biennial  period  in  those  States  where  the  Legislature 
meets  only  once  in  two  years.  In  Maryland,  New  Jersej',  Nebraska  and  West 
Virginia  the  form  and  content  of  the  budget  are  prescribed  in  considerable 
detail,  the  New  Jersey  law  going  so  far  as  to  include  a  set  of  rules  and  sample 
budget  forms  at  the  end  of  the  statute. 

Provisions  for  Consolidated  Appropriation  Bills.  —  The  Maryland  con- 
stitutional amendment  and  the  New  York  and  Utah  laws  require  that  the  budget 
shall  be  accompanied  by  a  bill  providmg  for  the  proposed  appropriations  clearly 
itemized.  In  New  Jersey,  although  there  is  no  provision  similar  to  that  of  Mary- 
land, "no  money  shall  be  drawn  from  the  treasurj^  except  bj^  the  general  appro- 
priation bUl  and  it  is  the  intent  of  this  act  that  no  supplemental,  deficiency  or 
incidental  bill  shall  be  considered,"  thus  inferring  that  all  appropriations  are  to 
be  made  in  a  consoUdated  measure.  The  Vermont  law  also  provides  that  all 
appropriations  shall  be  made  in  a  single  budget  bill.  Under  the  Connecticut 
law  the  Board  of  Finance  and  the  Joint  Committee  on  Appropriations  may 
originate  any  bill  they  deem  necessary.  In  Massachusetts  all  appropriations 
based  upon  the  budget  to  be  paid  from  taxes  or  revenue  shall  be  incorporated 
in  a  single  bill.  In  New  IMexico  the  Governor  is  charged  with  the  preparation 
of  all  the  appropriation  bills  both  general  and  special  which  are  necessary  for 
carrying  out  the  recommendations  which  he  has  made  in  his  budget.  In  West 
Virginia  the  budget  board  is  required  to  submit  to  the  legislature  two  budgets, 
one  for  each  of  the  ensuing  fiscal  years.  In  the  other  States  there  is  no  pro- 
vision for  a  general  budget  bill. 

Limitations  upon  Legislature  and  Legislative  Procedure.  —  Maryland,  New 
Mexico  and  West  Virginia  are  the  only  States  that  attempt  to  hmit  the  power 
of  the  legislative  bodj^  by  providing  that  the  Legislature  may  only  strike  out 
or  reduce  items  in  the  Governor's  budget.  The  Legislature  may,  however, 
initiate  appropriations  after  the  Governor's  recommendations  have  been  dis- 
posed of,  provided  that  every  such  appropriation  is  made  in  a  separate  bill. 
In  Maryland  every  such  biU  must  include  a  special  tax  levy  to  provide  the 
needed  revenue.  The  only  other  State  which  attempts  anything  of  this  kind 
is  New  York,  where  the  appropriation  bill  after  it  has  been  advanced  to  third 
reading  may  not  be  amended  without  unanimous  consent  except  to  reduce  or 
eliminate  an  item. 

Supplementary  Budgets.  —  The  Maryland  amendment  and  the  laws"  of  Massa- 
chusetts and  New  Jersey  recognize  that  emergencies  may  arise  after  the  budget 
has  been  submitted  necessitating  additional  appropriations.  Provision  is  there- 
fore made  that  the  Governor  may  transmit  supplementary  budgets  for  additional 
appropriations,  for  which  action  in  Maryland  he  must  receive  the  consent  of 
the  Legislature. 


87 


Appendix  B. 


MARYLAND  BUDGET  AMENDMENT. 
Constitution  of  Maryland,  Article  III. 

Section  52.  The  General  Assembly  shall  not  appropriate  any  money  out 
of  the  Treasury  except  in  accordance  with  the  follomng  provisions: 

Sub-Section  A.  Every  appropriation  bill  shall  be  either  a  Budget  Bill,  or  a 
Supplementary  Appropriation  BUI,  as  hereinafter  mentioned. 

Sub-Section  B.  First.  Within  twenty  days  after  the  convening  of  the 
General  Assembly  (except  in  the  case  of  a  newly  elected  Governor,  and  then 
within  thirty  days  after  his  inauguration),  unless  such  time  shall  be  extended  by 
the  General  Assembly  for  the  session  at  which  the  Budget  is  to  be  submitted, 
the  Governor  shall  submit  to  the  General  Assembly  two  budgets,  one  for  each  of 
the  ensuing  fiscal  years.  Each  budget  shall  contain  a  complete  plan  of  proposed 
expenditures  and  estimated  revenues  for  the  particular  fiscal  year  to  which  it 
relates;  and  shall  show  the  estimated  surplus  or  deficit  of  revenues  at  the  end 
of  such  year.  Accompanying  each  budget  shall  be  a  statement  showing:  (1) 
The  revenues  and  expenditures  for  each  of  the  two  fiscal  j'^ears  next  preceding; 
(2)  the  current  assets,  liabilities,  reserves  and  surplus  or  deficit  of  the  State;  (3) 
the  debts  and  funds  of  the  State;  (4)  an  estimate  of  the  State's  financial  condition 
as  of  the  beginning  and  end  of  each  of  the  fiscal  years  covered  by  the  two  budgets 
above  provided;  (5)  any  explanation  the  Governor  may  desire  to  make  as  to  the 
important  features  of  any  budget  and  any  suggestion  as  to  methods  for  the  reduc- 
tion or  increase  of  the  State's  revenue. 

Second.  Each  budget  shall  be  divided  into  two  parts,  and  the  first  part  shall 
be  designated  "Governmental  Appropriations"  and  shall  embrace  an  itemized 
estimate  of  the  appropriations;  (1)  for  the  General  Assembly  as  certified  to  the 
Governor  in  the  manner  hereinafter  provided;  (2)  for  the  Executive  Depart- 
ment; (3)  for  the  Judiciary  Department,  as  pro\'ided  by  law,  certified  to  the 
Governor  by  the  Comptroller;  (4)  to  pay  and  discharge  the  principal  and  inter- 
est of  the  debt  of  the  State  of  Maryland  in  conformity  with  Section  34  of  Article 
III  of  the  Constitution,  and  all  laws  enacted  in  pursuance  thereof;  (5)  for  the 
salaries  payable  by  the  State  under  the  Constitution  and  laws  of  the  State;  (6) 
for  the  estabUshment  and  maintenance  throughout  the  state  of  a  thorough  and 
efficient  system  of  public  schools  in  conformity  with  Article  VIII  of  the  Con- 
stitution and  with  the  laws  of  the  State;  (7)  for  such  other  purposes  as  are  set 
forth  in  the  Constitution  of  the  State. 

Third.  The  second  part  shall  be  designated  "General  Appropriations"  and 
shall  include  aU  other  estimates  of  appropriations. 


88 

The  Governor  shall  deliver  to  the  presidmg  officer  of  each  house  the  budgets 
and  a  bill  for  all  the  proposed  appropriations  of  the  budgets  clearly  itemized  and 
classified;  and  the  presiding  officer  of  each  house  shall  promptly  cause  said  bill 
to  be  introduced  therein,  and  such  bill  shall  be  knowTi  as  the  "Budget  Bill." 
The  Governor  may,  before  final  action  thereon  by  the  General  Assembly  amend 
or  supplement  either  of  said  budgets  to  correct  an  oversight,  or  in  case  of  an 
emergency,  with  the  consent  of  the  General  Assembly,  by  delivering  such  an 
amendment  or  supplement  to  the  presiding  officers  of  both  houses;  and  such 
amendment  or  supplement  shall  thereby  become  a  part  of  said  budget  bill  as  an 
addition  to  the  items  of  said  bill  or  as  a  modification  of  or  a  substitute  for  any 
item  of  said  biU  such  amendment  or  supplement  may  affect. 

The  General  Assembly  shall  not  amend  the  Budget  bill  so  as  to  affect  either 
the  obligations  of  the  State  under  Section  34  of  Article  III  of  the  Constitution, 
or  the  provision  made  by  the  laws  of  the  State  for  the  establisliment  and  main- 
tenance of  a  system  of  public  schools,  or  the  pajnnent  of  any  salaries  required  to 
be  paid  by  the  State  of  Maryland  by  the  Constitution  thereof;  and  the  General 
Assembly  may  amend  the  bill  by  increasing  or  diminishing  the  items  therein 
relating  to  the  General  Assembl}^,  and  bj^  increasing  the  items  therein  relating  to 
the  judiciary,  but  except  as  hereinbefore  specified,  may  not  alter  the  said  biU 
except  to  strike  out  or  reduce  items  therein,  provided,  however,  that  the  salary 
or  compensation  of  any  public  officer  shall  not  be  decreased  during  his  term  of 
office;  and  such  bill  when  and  as  passed  by  both  houses  shall  be  a  law  immedi- 
ately wdthout  further  action  by  the  Governor. 

Fourth.  The  Governor  and  such  representatives  of  the  executive  depart- 
ments, boards,  officers  and  commissions  of  the  State  expending  or  applying  for 
State's  money,  as  have  been  designated  by  the  Governor  for  this  purpose,  shall 
have  the  right,  and  when  requested  by  either  house  of  the  Legislature,  it  shall 
be  their  duty  to  appear  and  be  heard  with  respect  to  any  budget  bill  during  the 
consideration  thereof,  and  to  answer  inquiries  relative  thereto. 

Sub-Section  C.  Supplementary  Appropriation  Bills.  Neither  house  shall 
consider  other  appropriations  untU  the  Budget  Bill  has  been  finally  acted  upon  by 
both  houses,  and  no  such  other  appropriation  shall  be  valid  except  in  accordance 
with  the  provisions  following:  (1)  Every  such  appropriation  shall  be  embodied 
in  a  separate  bill  limited  to  some  single  work,  object  or  purpose  therein  stated 
and  called  herein  a  Supplementary  Appropriatibn  Bill;  (2)  Each  Supplementary 
Appropriation  Bill  shall  provide  the  revenue  necessary  to  pay  the  appropriation 
thereby  made  by  a  tax,  direct  or  indirect,  to  be  laid  and  collected  as  shall  be 
directed  in  said  bill;  (3)  No  Supplementary  Appropriation  Bill  shall  become  a 
law  unless  it  be  passed  in  each  house  by  a  majority  of  the  whole  number  of  the 
members  elected;  and  the  yeas  and  nays  recorded  on  its  final  passage;  (4) 
Each  Supplementary  Appropriation  Bill  shall  be  presented  to  the  Governor  of 
the  State  as  provided  in  Section  17  of  Article  II  of  the  Constitution  and  there- 
after all  the  provisions  of  said  Section  shall  apply. 

Nothing  in  this  amendment  shaU  be  construed  as  preventing  the  Legislature 
from  passing  at  any  time  in  accordance  with  the  provisions  of  Section  28  of 
Article  III  of  the  Constitution  and  subject  to  the  Governor's  power  of  approval 


89 

as  provided  in  Section  17  of  Article  II  of  the  Constitution  an  appropriation  bill 
to  provide  for  the  payment  of  any  obligation  of  the  State  of  Maryland  ^\ithin 
the  protection  of  Section  10  of  Article  I  of  the  Constitution  of  the  United  States. 

Sub-Section  D.  General  Provisions.  If  the  budget  shall  not  have  been  finally 
acted  upon  by  the  Legislature  three  days  before  the  expiration  of  its  regular  ses- 
sion, the  Governor  may,  and  it  shall  be  his  duty  to,  issue  a  proclamation  extend- 
iQg  the  session  for  such  further  period  as  may  in  his  judgment  be  necessary  for  the 
passage  of  such  Bill;  but  no  other  matter  than  such  Bill  shall  be  considered 
during  such  extended  session  except  a  provision  for  the  cost  thereof. 

Second.  The  Governor  for  the  purpose  of  making  up  his  budget  shall  have  the 
power,  and  it  shall  be  his  duty  to  require  from  the  proper  State  officials,  including 
herein  all  executive  departments,  all  executive  and  administrative  offices, 
bureaus,  boards,  commissions  and  agencies  expending  or  supervising  the  ex- 
penditure of,  and  all  institutions  appljdng  for  State  moneys  and  appropriations, 
such  itemized  estimates  and  other  information,  in  such  form  and  at  such  times 
as  he  shall  direct.  The  estimates  for  the  legislative  department,  certified  by  the 
presiding  officer  of  each  house,  of  the  judiciary,  as  provided  by  law,  certified  by 
the  Comptroller,  and  for  the  public  schools,  as  pro\'ided  by  law,  shall  be  trans- 
mitted to  the  Governor,  in  such  form  and  at  such  times  as  he  shall  direct,  and  shall 
be  included  in  the  budget  without  revision. 

The  Governor  may  pro\ade  for  public  hearings  on  all  estimates  and  may  re- 
quire the  attendance  at  such  hearings  of  representatives  of  all  agencies,  and  of  all 
institutions  applying  for  State  moneys.  After  such  public  hearings  he  may  in 
his  discretion  revise  all  estimates  except  those  for  the  legislative  and  judiciary 
departments,  and  for  the  public  schools  as  provided  by  law. 

Third.  The  Legislature  may,  from  time  to  time,  enact  such  laws,  not  incon- 
sistent with  this  Section,  as  may  be  necessary  and  proper  to  carry  out  its  provi- 
sions. 

Fourth.  In  the  event  of  any  inconsistency  between  any  of  the  pro\'isions  of 
this  Section  and  any  of  the  other  provisions  of  the  Constitution,  the  provisions 
of  this  Section  shall  prevail.  But  nothing  herein  shall  in  any  manner  affect  the 
provisions  of  Section  34  of  Article  III  of  the  Constitution  or  of  any  laws  hereto- 
fore or  hereafter  passed  in  pursuance  thereof,  or  be  construed  as  preventing  the 
Governor  from  calling  extraordinary  sessions  of  the  Legislature,  as  provided  by 
Section  16  of  Article  II,  or  as  preventing  the  Legislature  at  such  extraordinary 
sessions  from  considering  any  emergency  appropriation  or  appropriations. 

If  any  item  of  any  appropriation  bill  passed  under  the  proAdsion  of  this  Section 
shall  be  held  invalid  upon  any  ground,  such  invalidity  shall  not  affect  the  legality 
of  the  Bill  or  of  any  other  item  on  such  Bill  or  Bills. 


90 


Appendix  C. 


NEW  YORK  BUDGET  STATUTE. 
Laws  of  1916,  Chapter  130. 

Section  31.  Annual  Budget.  The  finance  committee  of  the  senate  and  tlie 
ways  and  means  committee  of  the  assembly,  acting  jointly  or  separateh^,  shall 
annually  prepare  and  submit  to  the  respective  houses,  not  later  than  March 
fifteenth,  a  budget  containing  a  complete  and  detailed  statement  of  all  appro- 
priations to  be  made  out  of  moneys  of  the  general  fund  in  the  state  treasury  for 
the  support  and  maintenance  of  the  government  of  the  state  and  for  all  other 
purposes,  which  appropriations  or  any  part  thereof  shall  become  available  during 
the  period  ending  with  the  ensuing  fiscal  j^ear.  Such  budget  shall  specify  the 
department,  board,  bureau,  commission,  office  or  institution  imder  whose  super- 
vision or  control  the  moneys  to  be  so  appropriated  are  to  be  expended  and  the 
purposes  for  which  such  appropriations  are  made.  There  shall  be  attached  to  and 
made  a  part  of  such  budget  an  itemized  and  detailed  estimate  of  the  probable 
revenues  of  the  state  out  of  which  the  appropriations  specified  in  such  budget 
may  be  paid,  and  such  budget  shall  include  an  estimate  of  the  amount  which  it 
will  be  necessary  to  raise  by  a  direct  tax  for  the  payment  of  such  appropriations. 
Such  budget  may  be  accompanied  by  a  statement  containing  such  information 
and  data  as  the  committees  may  deem  adAasable  to  present. 

Section  32.  Appropriation  bill;  consideration  by  legislature.  The  respective 
committees  shall  present  with  the  budget  a  single  bill  providing  the  appropria- 
tions contained  therein.  The  appropriation  bill  thus  reported  shall  be  referred 
to  the  committee  of  the  whole  of  the  senate  and  shall  be  advanced  to  the  order  of 
second  reading  in  the  assembly,  and  shall  remain  before  the  committee  of  the 
whole  of  the  senate  and  on  the  order  of  second  reading  in  the  assembly  for  its 
consideration  at  least  five  full  legislative  days  and  on  each  of  such  days  the  bills 
shall  be  the  special  order  of  the  day.  While  the  bill  is  under  consideration  in  the 
committee  of  the  whole  in  the  senate  or  on  second  reading  in  the  assemblj',  the 
head  of  any  department,  office,  board,  bureau,  commission  or  institution  of  the 
state,  may,  and  when  requested  by  a  majority  vote  of  either  house,  shaU  appear 
and  shall  be  heard  and  answer  inquiries  by  members  pertinent  to  the  appropria- 
tion bUl  then  under  consideration.  All  meetings  of  either  house  for  the  considera- 
tion of  the  appropriation  bill  shall  be  open  to  the  public.  While  the  bill  is  before 
the  committee  of  the  whole  of  the  senate  or  on  the  order  of  second  reading  in 
the  assembly,  it  may  be  amended  either  by  inserting  additional  items  or  by  in- 
creasing, reducing  or  eliminating  items;  but  on  third  reading  no  amendments, 
except  to  reduce  or  eliminate  an  item  in  the  bill,  shall  be  in  order  except  by 
unanimous  consent.    The  bill  when  advanced  to  the  order  of  third  reading  in 


91 

either  house  shall  be  a  special  order  of  the  day  for  at  least  three  full  legislative 
days. 

Section  29.  Finance  and  waj/s  and  means  committees  continued  during  recess. 
For  the  purpose  of  more  effectively  carrying  out  the  provisions  of  this  article, 
the  committee  on  finance  appointed  under  the  rules  of  the  senate  and  the  com- 
mittee on  ways  and  means  appointed  under  the  rules  of  the  assembly  shall  con- 
tinue during  the  recess  of  the  legislature,  and  the  chairmen  of  the  respective 
committees  shall  have  power  to  name  sub-committees  to  perform  such  duties 
as  thej^  may  prescribe  in  gathering  information  as  to  the  financial  needs  of  the 
various  charitable  institutions,  state  hospitals,  state  prisons  and  other  depart- 
ments, boards,  bureaus,  commissions,  offices  and  institutions  of  the  state.  The 
members  of  such  sub-committees  so  serving  shall  be  paid  their  necessary  travel- 
ing expenses  in  the  performance  of  their  duties. 

Section  27.  Appointment  of  clerks  of  finance  and  ways  and  means  committees. 
The  chairman  of  the  finance  committee  of  the  senate  shaU  appoint  the  clerk  of 
such  committee.  The  chairman  of  the  ways  and  means  committee  of  the 
assembly  shall  appoint  the  clerk  of  such  committee.  Each  appointment  shall 
be  evidenced  bj^  certificate  duly  executed  by  the  officer  making  the  appointment, 
and  filed  in  the  office  of  the  secretary  of  state.  Such  clerks  shall  hold  office  until 
their  successors  are  appointed. 

Section  30.  Duties  of  clerks  of  finance  and  ways  and  means  committees.  The 
clerk  of  the  finance  committee  of  the  senate  and  the  clerk  of  the  ways  and  means 
committee  of  the  assembly  shall 

1.  Collect,  compile  and  collate  information  and  data  relating  to  state  depart- 
ments, commissions,  boards,  bureaus,  offices,  institutions,  public  works  and 
other  subjects  for  which  appropriations  are  made  or  sought. 

2.  Prepare  and  make  available  for  the  use  of  such  committees  tables  showing 
appropriations  made  by  the  legislature  from  time  to  time  and  prepare  and  fur- 
nish when  requested  bj'^  such  committees  statistics  and  other  information  relating 
to  such  appropriations. 

3.  Procure,  compile  and  make  available  for  the  use  of  such  committees  sta- 
tistics as  to  the  revenues  of  the  state  during  the  preceding  year  and  the  estimated 
revenues  for  the  current  and  ensuing  fiscal  year. 

4.  File,  preserve  and  maintain  permanent  records  of  information  and  data 
collected  pursuant  to  this  section,  including  correspondence  in  relation  thereto. 

5.  Investigate  and  report  on  requests  for  appropriations  and  the  needs  there- 
for. 

6.  Aid  either  of  such  committees  and  the  members  thereof  in  making  any  in- 
vestigation which  may  be  required  or  authorized  by  either  of  such  committees  or 
by  the  legislature  and,  when  requested  to  do  so,  aid  any  other  legislative  com- 
mittee in  making  investigations  pertaining  to  expenditure  of  state  funds. 

7.  Aid  the  finance  committee  of  the  senate  and  the  ways  and  means  committee 
of  the  assembly,  when  requested,  in  the  preparation  of  the  annual  budget  and 
meet  and  confer  with  the  said  committees  for  the  purpose  of  assistmg  in  the  prep- 
aration, amendment  and  revision  of  bills  appropriating  state  moneys  and  other- 
wise aid  such  committees  or  either  of  them  in  the  performance  of  their  duties. 


92 

8.  For  the  purposes  of  this  section,  have  access  at  all  reasonable  times  to 
offices  of  state  departments,  commissions,  boards,  bureaus  and  offices,  to  institu- 
tions and  to  all  public  works  of  the  state  and  they  may,  for  the  purpose  of  obtain- 
ing information  as  to  the  operations  and  the  fiscal  needs  thereof,  examine  the 
books,  papers  and  public  records  therein.  Such  state  departments,  commissions, 
boards,  bureaus,  offices  and  institutions  shall  through  their  proper  officers  or 
deputies  furnish  such  data,  information  or  statements  as  may  be  necessary  for 
the  proper  exercise  of  their  duties  and  for  the  purpose  of  carrjdng  into  effect  the 
pro\dsions  of  this  article.  The  clerks  of  the  finance  and  ways  and  means  com- 
mittees in  exercising  the  powers  and  performing  the  duties  prescribed  by  this 
section  may  act  jointly,  or  separately,  as  they  deem  advisable.  All  data  and 
other  information  or  statements  collected  by  such  clerks  shall  be  accessible  at  all 
times  to  the  inspection  of  the  governor,  or  to  a  person  designated  by  him  for  such 
purpose. 

BUDGET  PROVISION  OF  PROPOSED  NEW  YORK 
CONSTITUTION,  1915. 

Article  V. 

Section  1.  On  or  before  the  fifteenth  day  of  November  .  .  .  the  head  of 
each  department  of  the  state  government  except  the  legislature  and  judiciary, 
shall  submit  to  the  governor  itemized  estimates  of  appropriations  to  meet  the 
financial  needs  of  such  department,  including  a  statement  in  detail  of  all  moneys 
for  which  any  general  or  special  appropriation  is  desired  at  the  ensuing  session 
of  the  legislature,  classified  according  to  relative  importance  and  in  such  form 
and  with  such  explanations  as  the  governor  may  require. 

The  governor,  after  public  hearing  thereon,  at  which  he  may  require  the 
attendance  of  heads  of  departments  and  their  subordinates,  shall  revise  such 
estimates  according  to  his  judgment. 

Itemized  estimates  of  the  financial  needs  of  the  legislature  certified  by  the 
presiding  officer  of  each  house  and  of  the  judiciary  certified  by  the  comptroller 
shall  be  transmitted  to  the  governor  before  the  fifteenth  day  of  January  next 
succeeding  for  inclusion  in  the  budget  without  revision  but  with  such  recom- 
mendation as  he  may  think  proper. 

On  or  before  the  first  day  of  February  next  succeeding  he  shall  submit  to  the 
legislature  a  budget  containing  a  complete  plan  of  proposed  expenditures  and 
estimated  revenues.  It  shall  contain  all  the  estimates  so  revised  or  certified  and 
shall  be  accompanied  by  a  bill  or  bills  for  all  proposed  appropriations  and  reap- 
propriations,  clearly  itemized;  it  shall  show  the  estimated  revenues  for  the  en- 
suing fiscal  year  and  the  estimated  surplus  or  deficit  of  revenues  at  the  end  of 
the  current  fiscal  year  together  with  the  measures  of  taxation,  if  any,  which  the 
governor  may  propose  for  the  increase  of  the  revenues.  It  shall  be  accompanied 
by  a  statement  of  the  current  assets,  liabilities,  reserves  and  surplus  or  deficit  of 
the  state;  statements  of  the  debts  and  funds  of  the  state;  an  estimate  of  its 
financial  condition  as  of  the  beginning  and  end  of  the  ensuing  fiscal  year;  and 
a  statement  of  revenues  and  expenditures  for  the  two  fiscal  years  next  preceding 


93 

said  year,  in  form  suitable  for  comparison.  The  governor  may,  before  final  action 
by  the  legislature  thereon,  amend  or  supplement  the  budget. 

A  copy  of  the  budget  and  of  any  amendments  or  additions  thereto  shall  be 
forthwith  transmitted  by  the  governor  to  the  comptroller. 

The  governor  and  the  heads  of  such  departments  shall  have  the  right,  and  it 
shall  be  their  duty  when  requested  by  either  house  of  the  legislature,  to  appear 
and  be  heard  in  respect  to  the  budget  during  the  consideration  thereof,  and  to 
answer  inquuies  relevant  thereto.  The  procedure  for  such  appearance  and  in- 
quiries shall  be  provided  by  law.  The  legislature  may  not  alter  an  appropriation 
bill  submitted  by  the  governor  except  to  strike  out  or  reduce  items  therein;  but 
this  provision  shall  not  apply  to  items  for  the  legislature  or  judiciary.  Such  a 
bill  when  passed  by  both  houses  shall  be  a  law  immediately  without  further 
action  by  the  governor,  except  that  appropriations  for  the  legislature  and  judi- 
ciary shall  be  subject  to  his  approval  as  provided  in  section  nine  of  article  four. 

Neither  house  shall  consider  further  appropriations  until  the  appropriation 
bills  proposed  by  the  governor  shall  have  been  finally  acted  on  by  both  houses; 
nor  shall  such  further  appropriations  be  then  made  except  by  separate  bills  each 
for  a  single  work  or  object,  which  bills  shall  be  subject  to  the  governor's  approval 
as  provided  in  section  nine  article  four.  Nothing  herein  contained  shall  be  con- 
strued to  prevent  the  governor  from  recommending  that  one  or  more  of  his 
proposed  bills  be  passed  in  advance  of  the  others  to  supply  the  immediate  needs 
of  the  government. 


94 


Appendix  D . 


NEW  JERSEY  BUDGET  STATUTE. 
Acts  of  1916,  Chaptee  15. 

Sect.  2.  Each  department  of  the  State  government,  board,  commission, 
charitable  or  correctional  institution,  or  any  other  State  agency,  requiring  an 
annual  appropriation  from  the  State,  shall  present  a  request  therefor  to  the 
Governor  on  or  before  November  fifteenth  of  each  year.  Any  organization, 
body,  committee  or  person  intending  to  request  an  appropriation  from  the 
Legislature  for  any  particular  object  or  purpose  or  for  any  new  annual  expendi- 
ture, shall  Ukewise  present  such  request  to  the  Governor  on  or  before  November 
fifteenth. 

3.  Such  requests  shall  be  made  by  the  head  of  such  department,  president 
or  chairman  of  such  board  or  commission,  or  officer  designated  by  the  board 
of  managers  or  other  governing  body  of  such  charitable  or  correctional  institu- 
tions, or  other  State  agency.  In  the  case  of  the  judiciary,  it  shall  be  made  by  the 
Clerk  of  the  Court  of  Errors  and  Appeals,  under  the  direction  of  the  Chancellor 
and  the  Chief  Justice  of  the  Supreme  Court,  and  in  the  case  of  the  Legislature, 
by  the  Clerk  of  the  House  of  Assembly  and  Secretary  of  the  Senate.  In  the  case 
of  any  organization,  body,  committee  or  person  as  mentioned  in  paragraph  two, 
the  request  shall  be  made  by  some  person  duly  authorized  therefor. 

4.  Such  requests  shall  be  made  upon  blanlv  forms  to  be  furnished  by  the  Comp- 
troller as  approved  by  the  Governor.  The  blank  forms  shall  be  filled  in  according 
to  the  rules  attached  hereto.  The  rules  may  be  altered  or  amended,  or  new  rules 
adopted  by  the  Governor  or  the  Joint  Appropriation  Committee  of  the  Legisla- 
ture from  time  to  time  as  conditions  may  require. 

5.  All  such  requests  for  appropriation  shall  show  in  detail  the  purposes  for 
which  appropriations  are  requested,  and  where  increases  or  decreases  from 
previous  appropriations  are  desired  the  reason  therefor.  Such  requests  shall  be 
sworn  to  by  the  person  making  the  same,  which  oath  shall  be  in  the  form  pro- 
vided by  rule. 

6.  There  shall  accompany  such  requests  for  appropriations  a  trial  balance 
covering  the  preceding  fiscal  year,  showing  the  receipts  and  expenditures  of  the 
department  or  body  presenting  such  request  in  such  form  and  detail  as  the 
Governor  may  direct. 

7.  On  November  fifteenth  of  each  year,  and  thereafter  as  required,  the  Comp- 
troller and  State  Treasurer  shall  jointly  transmit  to  the  Governor,  in  such  form 
as  he  shall  direct,  a  summary  of  the  financial  condition  of  the  State.  This  report 
shall  show,  in  condensed  form,  the  financial  condition  of  the  State  for  the  fiscal 


95 

year  ending  October  first  preceding,  the  amounts  expended  and  the  amounts 
received,  the  sources  and  amounts  of  income,  and  the  free  balance  in  the  treasury. 
He  shall  also  furnish  similar  information,  as  nearly  as  the  same  can  be  ascer- 
tained, for  the  current  year.  The  report  shall  likewise  show  the  probable  sources 
of  revenue  and  the  probable  estimate  of  the  State's  income  available  for  appro- 
priations for  the  next  fiscal  year  for  which  the  Legislature  will  be  requested  to 
make  appropriations. 

8.  Upon  the  receipt  of  requests  for  appropriations  and  the  report  of  the  Treas- 
urer and  Comptroller,  the  Governor  shall  proceed  to  examine  such  requests  and 
reports  for  the  purpose  of  determining  the  necessity  of  the  appropriations  so 
requested  and  shall  in  a  separate  message  transmit  to  the  Legislature  on  the 
second  Tuesday  in  January  a  summary  of  such  requests  and  reports,  together 
with  his  recommendations  thereon. 

9.  For  the  purpose  of  investigating  the  necessity  of  the  appropriations  so 
requested  or  for  the  purpose  of  ascertaining  if  either  new  sources  of  income  are 
required  or  present  sources  of  income  are  properly  collected  or  for  any  similar 
purpose,  at  any  time,  the  Governor  may  summon  witnesses  and  conduct  hear- 
ings or  appoint  any  ofiicer  of  the  State  government  or  any  other  person  partic- 
ularly fitted  therefor  to  conduct  an  investigation  or  examination  necessary  to 
aid  him  in  this  purpose.  Should  the  additional  duties  imposed  upon  the  Governor 
by  this  act  require  further  assistants,  the  Governor  shall  have  power  to  appoint 
officers  of  the  State  government,  together  with  not  more  than  two  special  as- 
sistants, to  form  a  permanent  committee,  acting  with  him  in  carrying  out  the  pro- 
visions of  this  act. 

10.  The  message  of  the  Governor  shall  be  in  such  form  that  it  can  be  easily 
understood  by  the  average  citizen,  and  shall  be  printed  and  a  copy  thereof  pre- 
sented to  each  member  of  the  Legislature,  the  press,  each  pubUc  library,  and 
given  such  other  publicity  as  the  Governor  or  the  Joint  Appropriation  Com- 
mittee shall  deem  wise. 

n.  The  Governor  shall  not  recommend  to  the  Legislature  appropriations  in 
excess  of  the  anticipated  revenue.  Should  he  believe  that  additional  appro- 
priations are  necessary,  he  shall,  if  he  deems  it  advisable,  suggest  plans  for  raising 
sufiicient  revenue  to  meet  such  appropriations. 

12.  If  he  deems  it  necessary,  the  Governor  may  from  time  to  time  transmit 
special  messages  requesting  additional  appropriations  for  purposes  not  antici- 
pated at  the  time  the  budget  message  was  transmitted  to  the  Legislature. 

13.  No  money  shall  be  drawn  from  the  treasury  except  by  the  General  Appro- 
priation Bill,  and  it  is  the  intent  of  this  act  that  no  supplemental,  deficiency  or 
incidental  bill  shall  be  considered. 

14.  tVlienever  any  act  creating  or  regulating  any  body,  mentioned  in  para- 
graph two,  shall  limit  the  amount  which  such  body  may  expend,  such  act  shall 
be  deemed  to  be  repealed  in  so  far  as  such  Umit  is  concerned  if  a  greater  amount 
is  appropriated  by  any  succeeding  Legislature  to  the  extent  only  of  such  greater 
amount. 

15.  In  order  that  some  degree  of  flexibihty  in  appropriations  may  be  had,  any 
department  or  other  agency  receiving  an  appropriation  by  anj-  future  act  of  the 


96 

Legislature  may  applj^  to  the  State  House  Commission  for  leave  to  transfer  a 
part  of  any  item  granted  to  such  department  or  agency  to  an}^  other  item  in  such 
appropriation.  Such  application  shall  only  be  made  during  the  current  year  for 
wliich  the  appropriation  was  made,  and  if  the  State  House  Commission  shall  con- 
sent thereto  it  shall  notify  the  Comptroller  thereof  in  writing,  whereupon  the 
Comptroller  shall  place  the  amount  so  transferred  to  the  credit  of  the  item 
so  designated;  provided,  however,  that  no  sum  appropriated  for  any  permanent 
improvement  shall  be  used  for  maintenance  or  for  any  temporary  purpose. 

16.  Any  department  of  the  State  government,  board,  commission,  charitable 
or  correctional  institution,  or  any  other  State  agency  which  derives  its  income  in 
part  or  in  whole  from  fees,  licenses,  taxes,  penalties,  or  in  any  manner,  by  reason 
of  any  law  whereby  such  income  is  paid  directly  to  such  body  for  its  support  and 
not  bj'  appropriation  from  the  State  treasury,  shall,  upon  request  of  the  Governor, 
supply  information  concerning  such  income  and  the  expenditure  thereof  either 
in  the  form  required  for  appropriations  or  in  any  other  form  which  he  may  direct, 
and  the  Governor  shall  have  the  same  powers  of  investigation  over  such  bodies 
as  over  other  bodies  requesting  appropriations  under  this  act. 

17.  The  expense  of  conducting  any  investigation  authorized  in  this  act  may 
be  drawn  from  either  a  special  appropriation  made  for  this  purpose  or  from  the 
Governor's  emergency  fund.  Such  expenses  shall  be  paid  upon  the  certificate  of 
the  Governor. 

18.  This  act  shall  be  liberally  construed,  and  if  any  section  thereof  shall  be 
declared  unconstitutional  by  any  court  of  competent  jurisdiction,  it  shall  not 
affect  anv  other  section  thereof. 


97 


A  PPENDIX    E  . 


MASSACHUSETTS  BUDGET  STATUTE. 

General  Acts  of  1918,  Chapter  244. 
An  Act  to  establish  a  Budget  System  for  the  Commonivealth. 
Be  it  enacted,  etc.,  as  follows: 

Section  1.  Every  officer  or  board  having  charge  of  any  department,  insti- 
tution or  undertaking  which  receives  an  annual  appropriation  of  money  from 
the  treasury  of  the  commonwealth,  including  annual  appropriations  to  be  met 
by  assessments,  shall  annually,  on  or  before  the  fifteenth  day  of  October,  sub- 
mit to  the  supervisor  of  administration  statements  showing  in  detail  the  amounts 
appropriated  for  the  current  fiscal  year,  and  estimates  of  the  amounts  required 
for  ordinary  maintenance  for  the  ensuing  fiscal  year,  with  an  explanation  of  any 
increased  appropriations  recommended,  and  with  citations  of  the  statutes  re- 
lating thereto,  together  with  such  other  information,  from  time  to  time,  as  may 
be  required  by  the  supervisor  of  administration.  The  said  estimates  shall  not 
include  any  estimate  for  oxry  new  or  special  purposes  or  objects  not  authorized 
by  statute.  The  officer  or  board  submitting  the  estimates  shall  ffie  on  the  same 
date  duplicate  copies  thereof  with  the  auditor  of  the  commonwealth. 

Section  2.  Officers,  heads  of  departments,  boards,  commissions  and  trustees 
of  institutions  who,  in  their  annual  reports  or  othei"wise,  recommend  or  petition 
for  the  expenditure  of  money  from  the  treasury  of  the  commonwealth  from  any 
source  of  revenue,  including  expenditures  to  be  met  by  assessments  or  the  issue 
of  notes  or  bonds,  for  any  purpose  or  object  not  covered  by  the  estimates  re- 
quired to  be  submitted  under  the  provisions  of  section  one  of  this  act  shall,  on 
or  before  October  fifteenth  of  each  year,  submit  estimates  thereof  in  detail  to 
the  supervisor  of  administration,  together  with  such  other  information  as  he 
may  require  from  time  to  time. 

Section  3.  The  auditor  of  the  commonwealth  shall  annually,  on  or  before 
the  twenty-sixth  day  of  December,  prepare  and  ffie  with  the  clerk  of  the  house 
of  representatives  and  with  the  supervisor  of  administration  statements  of  state 
accounts  setting  forth  in  comparative  tabulations  the  estimates  ffied  under  the 
provisions  of  section  one  of  this  act  and  estimates  of  all  claims  and  other  expen- 
ditures authorized  by  the  statutes,  including  interest,  sinking  fund  and  serial 
bond  requirements,  the  appropriations  for  the  preceding  year  and  expenditures 
for  all  state  purposes  for  the  preceding  three  years.  The  auditor  shall  further 
prepare  and  ffie  with  the  said  clerk  and  supervisor,  on  or  before  the  said  twenty- 
sixth  day  of  December,  his  estimates  for  the  ordinary  and  other  revenue  of  the 
commonwealth  in  comparative  tabulations  with  the  actual  revenue  for  the 


98 

preceding  three  jTars,  together  with  a  statement  of  the  free  or  unencumbered 
cash  balance  and  other  resources  available  for  appropriation. 

Section  4.  The  supervisor  of  administration  shall  study  and  review  all 
estimates  and  requests  for  appropriations  and  other  authorizations  for  expendi- 
tures of  state  funds  filed  with  him  as  provided  in  this  act,  and  shall  make  such 
investigations  as  may  be  necessarj'  to  enable  him  to  prepare  a  budget  for  the 
governor,  setting  forth  such  recommendations  as  the  governor  shall  determine 
upon.  The  governor  may  call  upon  the  department  of  the  auditor  for  in- 
formation relative  to  the  finances  of  the  commonwealth  and  for  assistance  in 
the  preparation  of  the  budget.  For  this  purpose  the  auditor  may  appoint  a 
deputy  in  his  department  at  an  annual  salary  not  to  exceed  thirty-five  him- 
dred  dollars.  The  budget  shall  be  submitted  bj^  the  governor  to  the  general 
court  not  later  than  the  second  Wednesday  in  January  of  each  3'ear,  and  it 
shall  embody  all  estimates,  requests  and  recommendations  for  appropriations 
or  other  authorizations  for  expenditures  from  the  treasurj^  of  the  commonwealth. 
The  budget  shall  be  classified  and  designated  so  as  to  show  separately  estimates 
and  recommendations  for:  (a)  expenses  of  administration,  operation  and  main- 
tenance; (h)  deficiencies  or  overdrafts  m  appropriations  of  former  years;  (c)  new 
construction,  additions,  improvements  and  other  capital  outlay-;  (d)  interest  on 
thepubhc  debt  and  sinking  fund  and  serial  bond  requirements;  and  (e)  aU  re- 
quests and  proposals  for  expenditures  for  new  projects  and  other  undertakings; 
and  shall  include  in  detail  definite  recommendations  of  the  governor  relative  to 
the  amounts  which  should  be  appropriated  therefor.  The  budget  shall  also  in- 
clude definite  recommendations  of  the  governor  as  to  the  financing  of  the  ex- 
penditures recommended  and  the  relative  amounts  to  be  raised  from  ordinary 
revenue,  direct  taxes  or  loans.  All  appropriations  based  upon  the  budget  to 
be  paid  from  taxes  or  revenue  shall  be  incorporated  in  a  single  bill  to  be 
designated  the  general  appropriation  bill.  With  the  budget  the  governor  shaU 
submit  to  the  general  court  such  messages,  statements  or  supplemental  data  with 
reference  to  the  budget  as  he  may  deem  expedient,  and  from  time  to  time 
during  the  session  of  the  general  court  he  may  submit  supplemental  messages 
on  recommendations  relative  to  appropriations,  revenues  and  loans. 

Section  5.  Sections  three  and  four  of  chapter  seven  hundred  and  nineteen 
of  the  acts  of  nineteen  hundred  and  twelve,  as  amended  bj'  chapter  two  hundred 
and  seventj^-eight  of  the  General  Acts  of  nineteen  hundred  and  seventeen,  and 
all  other  acts  and  parts  of  acts  inconsistent  herewith,  are  hereby  repealed. 

Section  6.  This  act  shall  take  effect  on  the  first  day  of  July  in  the  year 
nineteen  hundred  and  eighteen.     [Approved  May  28,  1918. 


99 


Appendix   F 


MASSACHUSETTS  BUDGET  AMENDMENT. 

Adopted  November  5,  1918. 

Section  1.  Collection  of  Revenue.  —  All  money  received  on  account  of 
the  Commonwealth  from  any  source  whatsoever  shall  be  paid  into  the  treasury 
thereof. 

Section  2.  The  Budget.  —  Within  tlu-ee  weeks  after  the  convening  of  the 
General  Court  the  Governor  shall  recommend  to  the  General  Court  a  budget 
which  shall  contain  a  statement  of  all  proposed  expenditures  of  the  Common- 
wealth for  the  fiscal  year,  including  those  already  authorized  by  law,  and  of 
all  taxes,  revenues,  loans  and  other  means  by  which  such  expenditures  shall  be 
defrayed.  This  shall  be  arranged  in  such  form  as  the  General  Court  may  bj'- 
law  prescribe,  or,  in  default  thereof,  as  the  Governor  shall  determine.  For  the 
purpose  of  preparing  his  budget,  the  Governor  shall  have  power  to  require  any 
board,  commission,  officer  or  department  to  furnish  him  -with  any  information 
which  he  may  deem  necessar5^ 

Section  3.  The  General  Appropriation  Bill.  —  All  appropriations  based 
upon  the  budget  to  be  paid  from  taxes  or  revenues  shall  be  incorporated  in  a 
single  bill  which  shall  be  called  the  general  appropriation  bill.  The  General 
Court  may  increase,  decrease,  add  or  omit  items  in  the  budget.  The  General 
Court  may  provide  for  its  salaries,  mileage,  and  expenses  and  for  necessary 
expenditures  in  anticipation  of  appropriations,  but  before  final  action  on  the 
general  appropriation  biU  it  shall  not  enact  any  other  appropriation  bill  except 
on  recommendation  of  the  Governor.  The  Governor  may  at  any  time  recom- 
mend to  the  General  Court  supplementary  budgets  which  shall  be  subject  to 
the  same  procedure  as  the  original  budget. 

Section  4.  Special  Appropriation  Bills.  —  After  final  action  on  the  general 
appropriation  bill  or  on  recommendation  of  the  Governor,  special  appropria- 
tion bills  may  be  enacted.  Such  bills  shall  provide  the  specific  means  for  defray- 
ing the  appropriations  therein  contained. 

Section  5.  Sub77iission  to  the  Governor.  —  The  Governor  may  disapprove  or 
reduce  items  or  parts  of  items  in  any  biU  appropriating  money.  So  much  of 
such  bill  as  he  approves  shall  upon  his  signing  the  same  become  law.  As  to  each 
item  disapproved  or  reduced,  he  shall  transmit  to  the  house  in  which  the  bill 
originated  his  reason  for  such  disapproval  or  reduction,  and  the  procedure  shall 
then  be  the  same  as  in  the  case  of  a  bill  disapproved  as  a  whole.  In  case  he 
shall  fail  so  to  transmit  his  reasons  for  such  disapproval  or  reduction  ^^'ithin 
five  days  after  the  bill  shall  have  been  presented  to  him,  such  items  shall  have 
the  force  of  law  unless  the  General  Court  by  adjournment  shall  prevent  such 
transmission,  in  which  case  they  shall  not  be  law. 


100 


Appendix    G. 

CALIFORNIA    BUDGET    AMENDMENT. 

Statutes  of  California,  Session  of  1917,  1937. 

Submitted  to  the  People  November  5,  1918  and  rejected. 

Sec.  34.  The  needs  of  the  state  offices,  departments  and  institutions,  for 
each  biennial  period  shall  be  ascertained  and  appropriations  therefor  recom- 
mended by  a  state  budget  board,  consisting  of  the  three  members  of  the  state 
board  of  control  and  the  state  controller,  and  the  lieutenant  governor  as  ex- 
officio  member,  which  board  shall  report  its  recommendations  to  the  legislature 
not  later  than  the  twentieth  day  of  each  regular  session.  The  budget  so  re- 
ported shall  be  introduced  in  the  form  of  two  bUls,  one  the  general  appropriation 
bUl,  the  other  an  omnibus  appropriation  bill  carrying  special  items  for  improve- 
ments and  betterments.  The  chairman,  or  designated  member  of  the  budget 
board,  shall  sit  with  each  house  of  the  legislature,  in  committee  of  the  whole 
thereof,  when  these  two  bUls  are  under  consideration  and  may  participate  in 
the  debate  thereon.  No  biU  making  an  appropriation  of  monej"",  except  these 
two  bills,  shall  contain  more  than  one  item  of  appropriation,  and  that  for  one 
single  and  certain  purpose,  to  be  therein  expressed. 


101 


Appendix    H. 


WEST  VIRGINIA  BUDGET  AMENDMENT. 

Acts  of  the   Legislature   of   West   Vibginia,   Second  Extraordinary 
Session,  May,  1917,  Chapter  15. 

Adopted  by  the  People  November  5,  1918. 

Section  51.  The  legislature  shall  not  appropriate  any  money  out  of  the 
treasury  except  in  accordance  with  the  f oUowdng  provisions : 

Sub-Section  A. 
Everj^  appropriation  bill  shall  be  either  a  budget  bill,  or  a  supplementary 
appropriation  bill,  as  hereinafter  mentioned. 

Sub-Section  B. 

First:  Within  ten  days  after  the  convening  of  the  legislature,  unless  such  time 
shall  be  extended  by  the  legislature  for  the  session  at  which  the  budget  is  to  be 
submitted,  the  board  of  pubhc  works,  which  shall  consist  of  the  governor,  sec- 
retary of  state,  auditor,  treasurer,  attorney  general,  superintendent  of  free 
schools  and  commissioner  of  agriculture,  shall  submit  to  the  legislature  two 
budgets,  one  for  each  of  the  ensuing  fiscal  years.  Each  budget  shall  contain 
a  complete  plan  of  proposed  expenditures  and  estimated  revenues  for  the  par- 
ticular fiscal  year  to  which  it  relates;  and  shall  show  the  estimated  surplus  or 
deficit  of  revenues  at  the  end  of  such  j^ear.  Accompanjdng  each  budget  shall 
be  a  statement  showing:  (1)  the  revenues  and  expenditures  for  each  of  the  two 
fiscal  years  next  preceding;  (2)  the  current  assets,  liabilities,  reserves  and  surplus 
or  deficit  of  the  state;  (3)  the  debts  and  funds  of  the  state;  (4)  an  estimate  of 
the  state's  financial  condition  as  of  the  beginning  and  end  of  each  of  the  fiscal 
years  covered  by  the  two  budgets  above  provided;  (5)  anj'-  explanation  the  board 
of  public  works  may  desire  to  make  as  to  the  important  features  of  any  budget 
and  any  suggestions  as  to  methods  for  the  reduction  or  increase  of  the  state's 
revenue. 

Second:  Each  budget  shall  be  divided  into  two  parts,  and  the  first  part  shall 
be  designated  "Governmental  Appropriations"  and  shall  embrace  an  itemized 
estimate  of  the  appropriations;  (1)  for  the  legislature  as  certified  to  the  board  of 
pubhc  works  in  the  manner  hereinafter  provided;  (2)  for  the  executive  depart- 
ment; (3)  for  the  judiciary  department,  as  provided  by  law,  certified  to  the 
governor  by  the  auditor;  (4)  to  pa}^  and  discharge  the  principal  and  interest  of 
any  debt  of  the  state  of  West  Virginia  hereafter  created  in  conformity  with  the 
constitution,  and  all  laws  enacted  in  pursuance  thereof;  (5)  for  the  salaries  pay- 
able by  the  state  under  the  constitution  and  laws  of  the  state;  (6)  for  the  aid  of 


102 

public  schools  in  conformity  with  the  laws  of  the  state;  (7)  for  such  other  purposes 
as  are  set  forth  in  the  constitution  and  laws  made  in  pursuance  thereof. 

Third:  The  second  part  shall  be  designated  "General  Appropriations,"  and 
shall  include  all  other  estimates  of  appropriations. 

The  board  of  public  works  shall  deliver  to  the  presiding  officer  of  each  house 
the  budgets  and  a  biU  for  all  the  proposed  appropriations  of  the  budgets  clearly 
itemized  and  classified;  and  the  presiding  officer  of  each  house  shall  promptly 
cause  said  bill  to  be  introduced  therem,  and  such  bill  shall  be  known  as  the 
"Budget  Bill."  The  board  of  public  works  may,  before  final  action  thereon  by 
the  legislature,  amend  or  supplement  either  of  said  budgets  to  correct  an  over- 
sight or  in  case  of  an  emergency,  with  the  consent  of  the  legislature,  by  delivering 
such  an  amendment  or  supplement  to  the  presiding  officers  of  both  houses;  and 
such  amendment  or  supplement  shall  thereby  become  a  part  of  said  budget  biU 
as  an  addition  to  the  items  of  said  bill  or  as  a  modification  of  or  a  substitute  for 
any  item  of  said  bill  such  amendment  or  supplement  may  affect. 

The  legislature  shall  not  amend  the  budget  bill  so  as  to  create  a  deficit  but 
may  amend  the  bill  by  increasing  or  diminishing  the  items  therein  relating  to 
the  legislature,  and  by  increasing  the  items  therein  relating  to  the  judiciary,  but 
except  as  hereinbefore  specified,  may  not  alter  the  said  bill  except  to  strike  out 
or  reduce  items  therein;  provided,  however,  that  the  salary  or  compensation 
of  any  public  officer  shall  not  be  increased  or  diminished  during  his  term  of 
office;  and  such  bill  when  and  as  passed  by  both  houses  shall  be  a  law  immediately 
without  further  action  by  the  governor. 

Fourth:  The  governor  and  such  representatives  of  the  boards,  officers,  and 
commissions  of  the  state  expending  or  applj'ing  for  state's  money  as  have  been 
designated  by  the  board  of  public  works  for  this  purpose,  shall  have  the  right, 
and  when  requested  by  either  house  of  the  legislature  it  shall  be  their  duty  to 
appear  and  be  heard  with  respect  to  any  budget  bill  during  the  consideration 
thereof,  and  to  answer  inquiries  relative  thereto. 

Suh-Section  C.  ■ —  Supplementary  Appropriation  Bills. 

Neither  house  shall  consider  other  appropriations  until  the  budget  bUl  has 
been  finally  acted  upon  by  both  houses,  and  no  such  other  appropriations  shall 
be  valid  except  in  accordance  with  the  provisions  following: 

(1)  Every  such  appropriation  shall  be  embodied  in  a  separate  biU  limited  to 
some  single  work,  object  or  purpose  therein  stated  and  called  herein  a  supple- 
mentary appropriation  bill;  (2)  Each  supplementary  appropriation  bill  shall 
provide  the  revenue  necessary  to  pay  the  appropriation  thereby  made  by  a  tax, 
direct  or  indirect,  to  be  laid  and  collected  as  shall  be  directed  in  said  bill  unless 
it  appears  from  such  budget  that  there  is  sufficient  revenue  available;  (3)  No 
supplementary  appropriation  bill  shall  become  a  law  unless  it  be  passed  in  each 
house  by  a  vote  of  a  majority  of  the  members  present,  and  the  yeas  and  nays 
recorded  on  its  final  passage.  Each  supplementary  appropriation  bill  shall  be 
presented  to  the  governor  of  the  state  as  provided  in  section  fourteen  of  article 
seven  of  the  constitution  and  thereafter  all  the  provisions  of  said  section  shall 
apply. 


103 

Nothing  in  this  amendment  shall  be  construed  as  preventing  the  legislature 
from  passing  in  time  of  war  an  appropriation  bill  to  provide  for  the  paj^ment  of 
any  obligation  of  the  state  of  West  Virginia  within  the  protection  of  section  ten 
of  article  one  of  the  constitution  of  the  United  States. 

Suh-Section  D.  —  General  Provisions. 

First:  If  the  "Budget  Bill"  shall  not  have  been  finally  acted  upon  by  the 
legislature  three  days  before  the  expiration  of  its  regular  session,  the  governor 
may,  and  it  shall  be  his  duty  to  issue  a  proclamation  extending  the  session  for 
such  further  period  as  may,  in  his  judgment,  be  necessary  for  the  passage  of  such 
bill;  but  no  other  matter  than  such  bill  shall  be  considered  during  such  extended 
session  except  a  provision  for  the  cost  thereof. 

Second:  The  board  of  public  works  for  the  purpose  of  making  up  its  budgets 
shall  have  the  power,  and  it  shall  be  its  dutj^  to  require  from  the  proper  state 
officials,  including  herein  all  executive  departments,  all  executive  and  adminis- 
trative officers,  bureaus,  boards,  commissions,  and  agencies  expending  or  super- 
vising the  expenditures  of,  and  all  institutions  applying  for  state  moneys  and 
appropriations,  such  itemized  estimates  and  other  information,  in  such  form  and 
at  such  times  as  said  board  shall  direct.  The  estimates  for  the  legislative  de- 
partment, certified  by  the  presiding  officer  of  each  house,  of  the  judiciary,  as 
provided  by  law,  certified  by  the  auditor,  and  for  the  public  schools,  as  provided 
by  law,  shall  be  transmitted  to  the  board  of  public  works,  in  such  form  and  at 
such  time  as  it  shall  direct,  and  shall  be  included  in  the  budget. 

The  board  of  public  works  may  provide  for  public  hearings  on  all  estimates 
and  may  require  the  attendance  at  such  hearings  of  representatives  of  all  agencies, 
and  all  institutions  applying  for  state  moneys.  After  such  public  hearings  it 
may,  in  its  discretion,  revise  all  estimates  except  those  for  the  legislative  and 
judiciary  departments,  and  for  the  public  schools  as  pro\aded  by  law. 

Third:  The  legislature  may,  from  time  to  time,  enact  such  laws,  not  incon- 
sistent with  this  section,  as  may  be  necessary  and  proper  to  carry  out  its  pro- 
visions. 

Fourth:  In  the  event  of  any  inconsistency  between  any  of  the  provisions  of 
this  section  and  any  of  the  other  provisions  of  the  constitution,  except  amend- 
ments thereto  heretofore  made  and  ratified  by  the  people,  the  pro\'isions  of  this 
section  shall  prevail.  But  nothing  herein  shall  be  construed  as  preventing  the 
governor  from  calling  extraordinary  sessions  of  the  legislature,  as  provided  by 
section  seven  of  article  seven,  or  as  preventing  the  legislature  at  such  extraordi- 
nary sessions  from  considering  any  emergency  appropriation  or  appropriations. 

If  any  item  of  any  appropriation  bill  passed  under  the  pro\'isions  of  this  section 
shall  be  held  uivalid  upon  any  ground,  such  invalidity  shall  not  affect  the  legaUty 
of  the  bill  or  of  any  other  item  of  such  bill  or  bills. 


104 


BIBLIOGRAPHY. 

Annals  of  the  American  Academy  of  Political  and  Social  Science,  vol.  62,  whole 

no.  151.    Philadelphia,  1915.    PubUc  Budgets.     (Editor  in  charge  of  this 

volume:  Prof.  A.  R.  Hatton.) 
Boston,  Mass.    Committee  on  the  Form  of  the  Annual  Budget,  Report,  October 

1,  1915.    Boston,  1915. 
Bureau   of   Municipal   Research,    New   York.    Budget   Legislation   in   Two 

States.    Municipal  Research,  no.  70;  February,  1916. 
Three  Proposed  Constitutional  Amendments  for  the  Control  of  the  Purse. 

Municipal  Research,  no.  73,  May,  1916. 
• Budget  Systems :  a  discussion  before  the  New  York  Constitutional  Con- 
vention.    Municipal  Research,  no.  62,  June,  1915,  pp.  251-447. 
■         State  Budget:  Constructive  proposals  to  be  submitted  to  the  State  Con- 
stitutional Convention.    Municipal  Research,  no.  58,  pp.  145-198. 
• The  Recent  Movement  for  State  Budget  Reform:   1911-1917.    Municipal 

Research,  No.  91.    Contains  a  valuable  bibUography. 
lUinois.    Report  of  the  Illinois  Efficiency  and  Economy  Committee,  John  A. 

Fairlie,  Dii-ector,  pp.  40-48,  54-58.    1914. 
Lowrie,  S.  G.    The  Budget.    Madison,  1912. 
Maryland    Department    of    Legislative    Reference.     The   Maryland   Budget 

Amendment.    Baltimore,  1917. 
Massachusetts  Commission  on  Economy  and  Efficiency,    Report  on  Budgetary 

Procedure,  May  27,  1916.    Boston,  1916. 
Report  on  Administration  of  State  Revenues  and  Loans,  April  29,  1916. 

Boston,  1916. 
New  York.    Department  of  Efficiency  and  Economy.    State  Budget  Report, 

1914. 
North  Dakota.    Public  Service  Commission.    Budgetary  Laws.    1912. 
Ohio.    Executive  Budget  for  the  fiscal  j'ear    1917  and  the  fiscal  year   1918. 

Columbus,  1917. 
Stourm,  Ren6.    The  Budget.    New  York,  1917. 
United  States.     President's  Commission  on  Economy  and  Efficiency.     Need  for 

a  National  Budget.  62d  Congress,  2d  session,  H.  R.  document  no.  854,  June 

27,  1912. 
Villard,  H.  G.  and  Willoughby,  W.  W.     The  Canadian  Budgetary  System. 

New  York,  1918. 
Willoughby,  W.  F.,  Willoughby,  W.  W.,  and  Lindsay,  S.  McC.     The  System 

of  Financial  Administration  of  Great  Britain.    New  York,  1917. 
Wisconsin  State  Board  of  PubHc  Affairs.    Wisconsin  State  Budget,  compiled 

for  the  use  of  the  Legislature  of  1915.    Madison,  1914. 
Wisconsin  State  Budget,  compiled  for  the  use  of  the  Legislature  of  1917. 

Madison,  1916. 


BULLETIN   No.   3 


THE    ABOLITION    OF    THE 
GOVERNOR'S    COUNCIL 


WITH   A   SUPPLEMENT   ON   THE 


STATUTORY  POWERS  AND  DUTIES  OF  THE 
GOVERNOR  AND  COUNCIL. 


CONTENTS. 

PAGE 

I.    Origin  and  Development  of  the  Governor's  Council  in  Massa- 
chusetts,   109 

11,    History  of  the  Council  in  Other  States, Ill 

III.  The  Debate  in  the  Constitutional  Convention  of  1853  on  the  Expe- 

diency of  abolishing  the  Council, 112 

A.  Summary  of  Arguments  favoring  Abolition,     ....     112 

B.  Summary  of  Argmnents  against  AboUtion,       .       .       .       .114 

IV.  On  the  Distribution  of  the  Duties  of  the  Council  in  the  Event  of  its 

Abolition, 115 

A.  Constitutional  Duties  now  performed  by  the  Council,    .       .115 

B.  By  whom  performed  in  Other  States, 116 

Bibliography, 122 

Supplement.  —  Statutory   Powers   and    Duties   of   the    Governor   and 

Council, 123 


THE  ABOLITION  OF  THE  GOVERNOR'S  COUNCIL. 


I.     Origin  and  Development  of  the  Governor's  Council  in 

Massachusetts. 

The  settlers  of  Plymouth  Colony,  who  came  in  1620  under  a 
patent  from  the  South  Virginia  Company,  discovering  that  they 
had  reached  a  region  outside  of  the  jurisdiction  of  that  Company, 
instituted  a  government  of  their  own,  choosing  a  Governor  and  a 
board  of  "assistants"  of  seven.  These  assistants  formed  the  his- 
torical origin  of  the  present  Council  in  this  Commonwealth.  The 
people  continued  under  this  form  of  government  until  1628,  when 
Charles  I  granted  them  a  charter,  under  which  the  freemen  could 
elect  eighteen  assistants;  and  this  body,  together  with  the  Governor 
and  the  Deputy  Governor,  formed  the  upper  branch  of  the  Assembly 
or  General  Court. 

During  the  administration  of  Sir  Henry  Vane  as  Governor  of 
Plymouth  Colony,  about  1644,  there  was  established  a  standing 
Council  and  a  Board  of  two  Assistants.  And  at  about  the  same  time, 
the  two  bodies  of  the  General  Court,  viz.,  the  Council  and  Assistants 
on  the  one  hand,  and  the  Representatives  on  the  other,  began  to 
hold  separate  sessions.  Out  of  this  organization  came  later  the 
establishment  of  the  two  concurrent  branches  of  the  Legislature, 
the  Senate  being  substituted  for  the  Board  of  Assistants. 

In  1684  the  charter  granted  by  Charles  I  was  revoked;  and  in 
1686  Sir  Edmund  Andros  was  appointed  by  Charles  II  to  be  military 
Governor  of  all  New  England.  A  Council  was  established,  but  it 
was  a  mere  instrument  of  royalty  and  despotism  controlling  the 
legislature  and  the  people,  and,  together  with  the  royal  Governor, 
ruling  with  an  iron  hand.  In  1689  the  people  of  Boston  revolted 
against  such  tyranny,  and  revived  the  government  as  it  had  existed 
under  the  charter  of  Charles  I.  Attempts  to  renew  that  charter 
were  unsuccessful,  but  in  1691  the  charter  of  William  and  Mary  was 
issued,  providing  a  more  acceptable  form  of  government.  This 
charter  provided  for  the  appointment  of  a  Governor,  a  Secretary 
and  a  Treasurer  by  the  Crown,  and  the  election  of  the  Assistants  or 


no 

Councillors,  as  they  were  then  for  the  first  time  called,  by  the  Gen- 
eral Court.  These  Councillors  numbered  twenty-eight,  and  were 
apportioned  as  follows:  twenty-one  from  Massachusetts,  four  from 
Plymouth  Colony  and  three  from  Maine.  They,  together  with  the 
Governor  and  Deputy  Governor,  formed  the  upper  branch  of  the 
General  Court  and  participated  in  all  the  legislative  and  in  a  portion 
of  the  judicial  action  of  the  government.  That  arrangement  con- 
tinued until  the  Revolution,  when  the  separation  of  legislative, 
judicial  and  executive  functions  was  made  and  the  Council  was  re- 
tained as  part  of  the  executive  branch. 

In  1778  the  General  Court,  by  a  resolution  of  its  own,  met  as  a 
Convention  and  drafted  a  constitution  which  made  no  provision  for 
a  Council;  the  Governor  was  authorized  to  advise  with  the  Senate, 
and  the  pardoning  power  was  given  to  the  Governor,  Deputy  Gov- 
ernor and  the  Speaker  of  the  House.  This  Constitution  was  rejected 
by  the  people.  Under  a  second  resolution,  passed  by  the  General 
Court,  the  people  chose  their  own  delegates  to  represent  them  in 
Convention;  and  that  Convention  formulated  and  perfected  the 
Constitution  which  we  have  today,  except  as  since  amended.  The 
Convention  of  1820,  which  next  met  to  revise  the  Constitution, 
still  retained  the  Council.  It  consisted  of  nine  members  who  were 
elected  by  joint  ballot  of  the  Senators  and  Representatives  from 
among  the  persons  returned  for  Councillors  and  Senators;  and  in 
case  there  was  not  found  upon  the  first  choice  the  whole  number 
of  nine  persons  to  accept  a  seat  in  the  Council,  the  deficiency  was 
made  up  by  electors  aforesaid  from  among  the  people  at  large. 
On  April  6,  1840,  the  people  ratified  the  Thirteenth  Article  of 
Amendment  to  the  Constitution,  which  provided  that  the  nine  coun- 
cillors should  annually  be  chosen  from  among  the  people  at  large  by 
joint  ballot  of  the  Senators  and  Representatives,  who  were  also 
given  power  to  fill  up  any  vacancies  that  might  occur  in  the  Coun- 
cil; that  no  person  should  be  elected  a  Councillor  who  had  not  been 
an  inhabitant  of  the  Commonwealth  for  the  term  of  five  years  im- 
mediately preceding  his  election;  and  that  not  more  than  one 
Councillor  should  be  chosen  from  any  one  senatorial  district. 

In  the  Convention  of  1853,  the  committee  designated  to  report  on 
the  advisability  of  abolishing  or  retaining  the  Council  reported  in 
favor  of  its  abolition,  there  being  only  one  dissent  from  the  report.  ^ 

1  Debates  in  the  Massachusetts  Convention,  1853,  I,  338,  339. 


Ill 

The  recommendation  of  the  committee  was  rejected  by  the  Con- 
vention, —  and  the  proposals  of  the  Convention  were  rejected  by 
the  people.  From  the  debates  of  the  Convention,  there  seems  to 
have  been  a  general  expectation  that  one  of  the  changes  in  the 
Constitution  would  be  the  abolition  of  the  Council.  ^  Although 
this  was  not  done,  an  amendment  was  adopted  in  1855  whereby  an 
important  change  was  made  with  respect  to  the  manner  of  choosing 
the  members  of  the  Council.  Instead  of  being  elected  by  the  Legis- 
lature, it  was  provided  that  the  State  should  be  divided  into  eight 
districts,  each  of  which  should  elect  one  Councillor. 

II.    History  of  the  Council  in  Other  States. 

In  addition  to  Massachusetts,  there  are  now  only  two  States 
(Maine  ^  and  New  Hampshire  ^)  the  constitutions  of  which  pro- 
vide for  an  Executive  Council.  North  Carolina  has  something 
similar  under  a  clause  of  her  Constitution  which  provides  that  the 
"Secretary  of  State,  Auditor,  Treasurer,  Superintendent  of  Public 
Works  and  Superintendent  of  Public  Instruction  shall  constitute 
ex  officio  the  Council  of  State,  who  shall  advise  the  Governor  in  the 
execution  of  his  office."  The  only  occasion  on  which  the  Constitu- 
tion of  North  Carolina  provides  specifically  for  the  Council  of  State 
to  advise  the  Governor  is  in  convening  the  Legislature  on  extraor- 
dinary occasions. 

The  charters  of  Delaware  and  Rhode  Island  provided  for  an 
election  of  "assistants"  by  the  freemen.  In  Delaware  the  Con- 
stitution of  1776  provided  for  the  election  of  a  privy  council  by  the 
Legislature;  but  the  Constitution  of  1792  abolished  that  branch  of 
the  executive.  In  Rhode  Island  the  Executive  Council  was  abolished 
by  the  Constitution  of  1842. 

Maryland  abolished  the  Executive  Council  in  1837  and  gave  to 
the  Senate  the  ratification  of  appointments  by  the  Governor.  The 
Constitution  of  1867  gave  him  the  sole  power  to  grant  reprieves  and 
pardons,  except  in  case  of  impeachment. 

Pennsylvania  abolished  in  1790  the  Council  provided  for  by  the 

>  Debates  in  the  Massachusetts  Convention,  185S,  I,  468  (Adams);  478  (Wilson);  482  (Butler);  528  (Mor- 
ton). 

2  Maine  became  independent  of  Massachusetts  in  1820,  and  took  over  its  form  of  government  almost 
in  toto,  and  has  amended  it  very  little  since. 

»  In  the  New  Hampshire  Constitutional  Convention  of  1912,  the  committee  designated  to  report  on  the 
expediency  of  abolishing  the  Council  reported  in  favor  of  retaining  it,  and  the  Convention  adopted  the 
recommendation  of  the  committee  without  debate. 


112 

Constitution  of  1776.     The  power  of  pardoning  was  vested  in  the 
Governor,  and  subsequently  a  Board  of  Pardons  was  estabHshed. 

South  CaroHna  abolished  the  Executive  Council  in  1790.  The 
power  of  pardoning  has  since  been  given  to  the  Governor,  and  a 
Board  of  Pardons  has  been  established  which  is  advisory  only. 

Vermont,   by   an   amendment   in    1836,   abolished  the   Executive  ^ 
Council   and   gave   all  executive   power  to  the   Governor,  and   the 
ratification  of  appointments  to  the  Senate. 

Virginia  abolished  the  Executive  Council  in  the  Constitution  of 
1850. 

No  State  that  originally  had  no  council  has  ever  adopted  it  as  a 
branch  of  the  executive  department.  The  change  has  all  been  in  the 
direction  of  abolition. 


III.    The  Debate  in  the  Constitutional  Convention  of  1853 
ON  THE  Expediency  of  abolishing  the  Council. 

A.     Summary  of  Arguments  favoring  Abolition. 

1.  The  Council  is  a  relic  of  the  old  Board  of  Assistants,  which  was  the 
colonial  Privy  Council,  —  a  body  of  advisers  surrounding  the  Crown 
who  could  be  held  responsible  by  the  people.  Out  of  place  in  a  form 
of  government  where  the  Governor  is  responsible  to  the  people. 

2.  It  does  not,  by  reason  of  the  duties  it  performs,  dispense  with 
any  executive,  administrative  or  legislative  ofiicers  or  bodies. 

3.  It  leads  to  loose  legislation.  "In  consequence  of  the  historical 
character  of  the  Council,  legislators  are  now  in  the  habit  of  making 
the  laws  in  reference  to  it,  and  when  they  have  elaborated  those  laws 
down  to  certain  lines  of  detail,  where  specific  provisions  become 
difficult  or  intricate,  to  be  rid  of  the  labor,  they  put  in  a  sweeping 
clause,  'to  be  done  under  the  direction  of  the  Governor  and  Council;' 
instead  of  directing  by  law  how  things  shall  be  done,  things  are 
left  to  be  done  under  the  direction  of  the  Governor  and  Council, 
that  ought  to  be  done  by  direction  of  law.  And  therein,  your  Gov- 
ernor and  Council  practically  do  participate  in  the  legislative  power, 
although  they  do  it  according  to  law."  ^ 

4.  It  has  a  prejudicial  effect  on  the  judiciary  in  that  the  power  of 
revision  of  sentences,  as  exercised  by  it,  weakens  the  court,  and  the 
strength  and  power  of  punishment. 

1  Debates  in  the  Massachusetts  Convention,  1853,  I,  510,  511. 


113 

5.  The  Governor  does  not  rely  on  it  for  information,  but  goes 
directly  to  the  heads  of  departments. 

6.  It  destroys  the  unity  of  the  executive  and  concentration  of  re- 
sponsibility, and  thus  militates  against  efl5cient  administration. 

(a)  The  practice  of  other  States  shows  it  is  safe  to  concentrate 
executive  power  and  responsibility  in  the  Governor. 

7.  Economy  in  the  operation  of  the  government  would  be  effected 
by  a  saving  of  salaries  and  expenses.^ 

8.  The  secret  proceedings  of  the  Council,  particularly  in  the  matter 
of  pardons,  is  objectionable. 

9.  The  constitutional  duties  which  it  performs  can  be  as  efficiently 
performed  by  other  officers  or  bodies  already  existing,  as  shown  by 
practice  in  those  States  that  have  abolished  the  Council  or  that 
have  never  had  one. 

10.  As  to  the  pardoning  power,  while  the  Governor  may  not  grant 
a  pardon  without  the  advice  of  the  Council,  he  may  refuse  to  grant 
one  which  the  Council  has  recommended.^ 

(a)  The  concentration  of  responsibility  for  pardons  in  the  Gov- 
ernor, or  in  a  Board  of  Pardons  of  which  he  is  a  member,  is  prefer- 
able to  division  of  it  between  the  Governor  and  the  Council. 

(b)  There  is  duplication  of  w^ork  and  consideration  in  cases  where 
the  Governor  has  doubt  as  to  propriety  of  following  the  advice  of  the 
Council  and  must  therefore  hear  proceedings  again. 

(c)  The  number  of  cases  of  application  for  pardon  not  so  great 
that  the  Governor  cannot  attend  to  them  personally  or  w4th  the  help 
of  a  Board  of  Pardons,  as  is  done  in  nearly  all  the  States. 

11.  With  respect  to  the  confirmation  of  appointments  or  removals 
by  the  Governor: 

(a)  It  is  safer,  more  conservative  and  more  in  accord  with  the 
successful  practice  of  the  Federal  and  nearly  all  the  State  govern- 
ments to  give  the  power  of  ratification  to  the  Senate,  which  more 
completely  represents  all  the  people. 

(6)  If  the  Governor  and  the  Council  disagree,  action  is  blocked. 

(c)  If  the  Governor  and  the  Council  are  of  one  political  party, 
appointments  may  be  a  mere  distribution  of  spoils. 

12.  With  respect  to  succession: 

(a)  The  practice  in  other  States,  whereby  the  President  pro 
tempore  of  the  Senate,  the  Speaker  of  the  House,  the  Secretary  of 

'  The  average  annual  cost  of  Council  for  the  ten  years  from  1906  to  1915,  inclusive,  has  been  $10,291.66. 
«  Opinion  of  Justices  to  the  Governor,  190  Mass.  616;  210  Mass.  609,  and  cases  there  cited. 


114 

State  and  other  administrative  officers  follow  the  Lieutenant  Gov- 
ernor in  order  of  succession,  in  event  of  a  vacancy  in  the  office  of 
Governor,  works  well  and  retains  concentration  of  responsibility. 

(6)  The  Council  does  not  succeed  the  Governor  and  Lieutenant 
Governor  in  Maine  and  New  Hampshire,  —  the  only  States  besides 
Massachusetts  in  which  the  Governor's  Council  is  still  retained. 

13.  With  respect  to  the  examination  of  the  returns  of  votes  for 
Senators,  that  is  a  mere  clerical  duty  which  is  in  fact  performed  by 
the  town  officers. 

14.  With  respect  to  approving  the  Governor's  warrants  for  pay- 
ments from  the  Treasury: 

(a)  Nearly  all  his  warrants  are  drawn  in  obedience  to  express 
statute  or  positive  resolve  of  the  Legislature. 

(b)  The  Auditor  or  Attorney  General,  or  both,  can  pass  on  the 
validity  of  every  claim  against  the  Commonwealth. 

(c)  No  other  State  has  such  a  provision. 

15.  With  respect  to  adjourning  and  proroguing  the  Legislature: 
(a)  Merest  administrative  act  for  which  few  States  make  any  pro- 
vision. 

(6)  Nearly  all  the  States  entrust  Governor  with  the  power  of 
adjourning  the  Legislature  when  the  two  houses  cannot  agree. 

16.  With  respect  to  calling  special  sessions  of  the  Legislature  when 
the  public  welfare  requires: 

(a)  The  Governor  more  likely  to  know  when  the  occasion  arises. 
(6)  The  Council  is  advisory  only. 

(c)  To  require  the  assent  of  the  Council  to  the  calling  of  a  special 
session  by  the  Governor  on  extraordinary  occasion  would  endanger 
the  public  welfare,  in  the  event  of  disagreement  between  the  Gov- 
ernor and  Council. 

(d)  Nearly  all  the  States  give  this  power  to  the  Governor. 

B.     Summary  of  Arguments  against  the  Abolition  of  the  Council. 

1.  It  is  not  safe  to  concentrate  executive  power  in  one  individual. 

2.  The  duties  of  the  Governor  and  other  officers  or  bodies  would 
be  onerously  increased. 

3.  The  Governor  needs  check,  or  support,  according  to  circum- 
stances. 

4.  The  Council  is  more  accessible  than  the  Governor  to  convicts 
seeking  pardons. 

5.  The  Council  more  than  earns  its  salary  by  the  work  it  does. 


115 


IV.    On  the  Distribution  of  the  Duties  of  the  Council  in 
THE  Event  of  its  Abolition. 

A.     Constitutional  Duties  now  performed  by  the  Council. 

1.  To  examine,  with  the  Governor,  the  records  of  votes  for  Sena- 
tors.    (Ch.  I,  Sect.  II,  Art.  III.) 

2.  To  assemble,  upon  the  call  of  the  Governor,  and  advise  him  in 
the  executive  part  of  the  government,  agreeably  to  the  Constitution 
and  the  laws  of  the  land.  (Ch.  II,  Sect.  I,  Art.  IV;  Ch.  II,  Sect. 
Ill,  Art.  I.) 

3.  To  advise  the  Governor  in  adjourning  or  proroguing  the  Legis- 
lature to  any  time  the  two  houses  shall  desire,  and  to  call  it  together 
sooner  than  the  time  to  which  it  may  be  adjourned  or  prorogued, 
if  the  welfare  of  the  Commonwealth  requires  it.  (Ch.  II,  Sect.  I, 
Art.  V.) 

4.  To  advise  the  Governor  in  adjourning  or  proroguing  the  Legis- 
lature in  cases  of  disagreement  between  the  two  houses  as  to  neces- 
sity, expediency  or  time.     (Ch.  II,  Sect.  I,  Art.  II.) 

5.  To  advise  the  Governor  in  pardoning  offences.  (Ch.  II,  Sect. 
I,  Art.  VIII.) 

6.  To  advise  and  consent  to  the  appointment,  by  the  Governor, 
of  all  judicial  officers,  the  solicitor-general,  coroners  and  notaries 
public.    (Ch.  II,  Sect.  I,  Art.  IX.) 

7.  To  advise  the  Governor  in  filling  vacancies  in  the  offices  of 
brigadiers,  field  officers,  captains  or  subalterns  in  the  militia,  if  the 
electors  shall  neglect  or  refuse  to  make  such  elections  after  being 
duly  notified.    (Ch.  II,  Sect.  I,  Art.  X.) 

8.  To  advise  the  Governor  in  the  appointment  of  officers  of  the 
Continental  Army.    (Ch.  II,  Sect.  I,  Art.  X.) 

9.  To  advise  and  consent  to  all  money  warrants  drawn  by  the 
Governor  on  the  treasury.    (Ch.  II,  Sect.  I,  Art.  XL) 

10.  To  execute  all  executive  powers,  in  case  the  offices  of  Governor 
and  Lieutenant  Governor  shall  be  vacant  for  any  reason.  (Ch.  II, 
Sect.  Ill,  Art.  VI.) 

11.  To  consent  to  the  removal  of  judicial  officers  by  the  Governor 
upon  address  of  both  houses  of  the  Legislature  (Ch.  Ill,  Art.  I), 
and  to  consent  to  the  removal  of  justices  of  the  peace  and  notaries 
public.     (Amendments,  Arts.  IV  and  XXXVII.) 

12.  To  hear  and  determine,  with  the  Governor,  all  causes  of  mar- 


116 

riage,  divorce  and  alimony,  and  all  appeals  from  the  judges  of  pro- 
bate, until  the  Legislature  shall  by  law  make  other  provision  (which 
has  been  done).    (Ch.  Ill,  Art.  V.) 

13.  To  attend  the  Governor  in  the  administration  of  the  oath  of 
office  to  the  Senators  and  Representatives.     (Ch,  VI,  Art.  I.) 

14.  To  advise  and  consent  to  appointments  by  the  Governor  to 
fill  vacancies  in  the  offices  of  Secretary,  Treasurer,  Auditor  or  At- 
torney-General when  the  Legislature  is  not  in  session.  (Amendment, 
Art.  XVII.) 

15.  To  advise  and  consent  to  appointments  by  the  Governor  to 
fill  a  vacancy  in  the  Council  when  the  Legislature  is  not  in  session. 
(Amendment,  Art.  XXV.) 

B.     By  whom  performed  in  Other  States. 

1.  Examination  of  Returns  and  Records  of  Votes  for  Sena- 
tors. —  The  only  other  States  that  have  provisions  for  the  exam- 
ination of  returns  of  votes  for  Senators  are  Connecticut,  where  the 
Treasurer,  Secretary  and  Comptroller  canvass  the  votes  publicly, 
and  Maine,  where  the  provision  is  practically  the  same  as  in  this 
State. 

2.  Adjourning  and  Proroguing  the  Legislature  on  Agree- 
ment OF  Both  Houses.  —  This  is  simply  a  formal  act  for  which  the 
constitutions  of  other  States  make  no  provision. 

3.  Adjourning  and  Proroguing  the  Legislature  in  Case  of 
Disagreement  between  the  Two  Houses  as  to  Necessity,  Ex- 
pediency OR  Time.  —  All  the  constitutions  that  have  provisions  of 
this  nature  give  the  power  to  the  Governor  alone. 

Seventeen  States  limit  adjournment  to  the  day  of  the  next  regular 
session.  ^  Several  add  the  requirement  that  the  facts  shall  be  cer- 
tified to  the  Governor  by  the  presiding  officers  of  both  houses;  ^ 
or  by  the  house  first  moving  adjournment;  ^  or  by  the  presiding 
officer  thereof:  ^  or  by  the  house  last  moving  adjournment;  ^  or  by 
either  house.® 

Four  States  limit  the  period  of  adjournment  specifically.^ 

1  Arkansas,  California,  Colorado,  Connecticut,  Florida,  Illinois,  Iowa,  Kansas,  Maine,  Mississippi, 
Nebraska,  Nevada,  Ohio,  Oklahoma,  Rhode  Island,  South  Carolina,  Utah. 

2  Arkansas. 

•  Nebraska. 

•  Illinois,  Oklahoma. 

•  Colorado. 

•  Rhode  Island. 

'  Delaware,  3  months ;  Kentucky  and  Pennsylvania,  4  months;  New  Hampshire,  90  days. 


117 

In  Georgia,  the  Governor  may  adjourn  either  house. 
In  Vermont,  he  may  adjourn  the  Legislature  to  such  time  as  he 
sees  fit. 

4.  Calling  of  Special  Sessions.  —  Except  in  New  Hampshire,  ^ 
North  CaroUna,  ^  and  Virginia,^  the  Governor  alone,  on  "ex- 
traordinary occasions"  or  when  the  public  welfare  requires  it, 
has  power  to  call  special  sessions  of  the  Legislature.^ 

Twenty-one  States  require  the  call  to  be  by  proclamation.^  And 
fifteen  States  require  it  to  state  the  purpose  of  meeting.^ 

West  Virginia  has  the  additional  provision  that  the  Governor  must 
call  a  special  session  on  the  application  in  writing  of  three-fifths  of 
the  members  of  each  house. 

Delaware  and  Pennsylvania  have  additional  provisions  that  the 
Governor  may  convene  the  Senate  only,  by  proclamation,  for  the 
transaction  of  executive  business. 

5.  Pardoning  Power.  —  In  most  of  the  State  constitutions,  the 
pardoning  power  is  divided  into  commutation  of  sentences;  pardons; 
remission  of  fines,  penalties  and  forfeiture;  and  granting  of  re- 
prieves. The  Constitution  of  Massachusetts  provides  merely  for  the 
pardoning  of  offences;  but  this  has  been  held  to  include  the  exer- 
cise of  power  to  grant  the  other  forms  of  executive  clemency.^ 

In  more  than  half  of  the  States  the  power  to  commute  sentences, 
to  pardon,  except  in  cases  of  treason  or  impeachment  or  both,  and  to 
remit  fines  and  forfeitures,  is  given  to  the  Governor  alone.  And  in 
as  many  as  forty  States  he  has  exclusive  power  to  grant  reprieves. 
In  most  instances  his  power  to  exercise  clemency  is  subject  to  regula- 
tions prescribed  by  law  or  to  the  provisions  of  the  law  relative  to 
the  manner  of  applying  therefor. 

•  In  New  Hampshire,  the  Legislature  may  assemble  at  such  time  as  it  may  deem  necessary. 
'  In  North  Carolina,  call  is  with  advice  of  council  of  state. 

•  In  Virginia,  call  is  on  application  of  two-thirds  of  members  of  both  houses. 

•  Alabama  (not  to  exceed  30  days),  Arizona,  Arkansas,  California,  Connecticut,  Colorado,  Delaware, 
Florida  (not  to  exceed  20  days),  Georgia  (not  to  exceed  30  days),  Illinois,  Idaho  (not  to  exceed  20  daj^), 
Indiana  (not  to  exceed  40  days),  Iowa,  ICansas,  Kentucky,  Louisiana  (not  to  exceed  30  days),  Maine,  Mary- 
land (not  to  exceed  30  days),  Michigan,  Minnesota,  Mississippi  (not  to  exceed  30  days,  unless  Governor, 
deeming  public  interest  to  require  it,  shall  extend  sitting  by  proclamation  in  writing  for  specific  number  of 
days),  Missouri,  Montana,  Nebraska,  Nevada  (not  to  exceed  20  days).  North  Carolina,  North  Dakota, 
New  Jersey,  New  York,  New  Mexico  (not  to  exceed  30  days),  Ohio,  Oregon  (not  to  exceed  20  days),  Okla- 
homa, Pennsylvania,  Rhode  Island,  South  Carolina,  Tennessee,  Texas  (not  to  exceed  30  days),  Utah 
(not  to  exceed  30  days),  Virginia,  Vermont,  West  Virginia,  Wisconsin,  Wyoming. 

'  Alabama,  Arizona,  Arkansas,  California,  Delaware,  Florida,  Iowa,  Illinois,  Indiana,  Kentucky, 
Mississippi,  Missouri,  Nebraska,  Nevada,  North  Carolina,  Ohio,  Oregon,  Pennsylvania,  Tennessee,  Texas, 
Washington. 

'  Alabama,  Arizona,  Arkansas,  California,  Florida,  Illinois,  Kentucky,  Mississippi,  Missouri,  Nebraska, 
North  Carolina,  Ohio,  Tennessee,  Texas,  Washington. 

'  Opinion  of  the  Justices  to  the  Governor,  210  Mass.  608,  and  cases  there  cited. 


118 

In  seven  States  the  Governor  has  power  to  commute,  in  nine 
States  he  has  power  to  pardon,  in  six  States  he  has  power  to  remit 
fines  and  forfeitures,  and  in  three  States  he  has  power  to  grant  re- 
prieves on  recommendation  of  the  Board  of  Pardons,  in  conjunction 
with  it,  or  with  the  approval  of  the  Board  of  Pardons  or  the  Council. 

Of  the  Constitutions  that  provide  for  Boards  of  Pardons,  four 
give  to  the  Board  exclusive  power  to  commute  sentences,  five  give  it 
exclusive  power  to  pardon,  and  five  give  it  exclusive  power  to  remit 
fines  and  forfeitures.  In  none  of  these  States,  however,  has  the 
Board  of  Pardons  power  to  grant  reprieves. 

Connecticut  seems  to  be  the  only  State  in  which  the  power  to 
pardon  is  given  to  the  Legislature. 

In  most  States  the  Constitution  requires  that  the  Governor,  or  the 
Board  of  Pardons,  where  it  has  exclusive  power  and  the  Governor  is 
not  a  member  of  it,  shall  report  to  the  Legislature,  either  at  each 
session  thereof,  biennially  or  annually,  each  case  of  commutation, 
pardon,  remission  or  reprieve,  and  certain  specific  information  con- 
cerning it. 

For  a  more  detailed  treatment  of  this  topic  see  Bulletin  No.  4, 
The  Pardoning  Power. 

6.  Confirmation  of  Appointments.  —  The  power  of  confirming 
appointments,  wherever  it  is  required,  is  given  to  the  Senate,  except 
in  Virginia,  where  the  consent  of  the  Legislature  is  required  only  to 
appointments  to  the  State  Corporation  Commission,  and  in  Maine 
and  New  Hampshire,  where  the  power  of  confirmation  is  given  to  the 
Council. 

7.  Advising  the  Governor  in  filling  Vacancies  in  the 
Militia.  —  In  all  the  States  the  Governor  has  sole  power  to  fill 
vacancies  in  the  elective  offices  in  the  militia,  without  confirmation, 
where  the  electors  have  refused  or  neglected  to  fill  the  same. 

8.  Advising  the  Governor  in  Appointment  of  Officers  of  the 
Continental  Army.  —  No  other  States  have  such  a  provision. 

9.  Consent  to  Money  Warrants  drawn  by  the  Governor  on 
THE  Treasury.  —  The  only  other  States  having  a  constitutional 
provision  of  this  nature  are  Vermont,  where  the  Governor  is  au- 
thorized to  draw  on  the  Treasurer  for  such  sums  as  the  Legislature 
may  appropriate,  and  Missouri,  where  the  Governor  is  authorized 
to  approve  of  depositary  banks  and  their  security  for  deposits  of 
State  funds. 


119 

10.  Succession.  —  The  order  of  succession  to  the  office  of  Gov- 
ernor in  case  of  a  vacancy  therein  is  as  follows :  — 

(a)    Lieutenant-Governor;   President  pro  tempore  of  the  Senate.^ 
(6)    Lieutenant-Governor;    President  pro  tempore  of  the  Senate;    Speaker  of 
the  House  ^  (this  is  the  most  common  arrangement). 

(c)  Lieutenant-Governor;  President  pro  fe7?ipore  of  Senate;  Secretary  of  State.' 

(d)  Lieutenant-Governor;  President  pro  te?npore  of  Senate;  Secretary  of  State ; 

Attorney-General .  * 

(e)  Lieutenant-Governor;    President  pro  tempore  of  the  Senate;    Speaker  of 

the  House;  Attorney-General;  Auditor;  Secretary  of  State;  Treasurer.* 
(/)    Lieutenant-Governor;  Secretary  of  State. ^ 
(g)    Lieutenant-Governor;    Secretary  of  State;    President  pro  tempore  of  the 

Senate.^ 
(h)   Lieutenant-Governor;    Secretary  of  State;    Attorney-General;    President 

pro  tempore  of  Senate;   Speaker  of  the  House.* 
(i)    Lieutenant-Governor;  Secretary  of  State;  Treasurer;  Auditor;  Attorney- 
General;  Supermtendent  of  Public  Instruction;  Commissioner  of  Pubhc 

Lands.' 
(j)    Lieutenant-Governor;  Legislature  to  provide.^" 
(fc)   President  of  the  Senate;  Speaker  of  the  House. ^^ 
(l)    President  of  Senate;   Speaker  of  the  House;   joint  vote  of  Legislature  to 

elect. ^2 
(m)  Legislature  to  elect  successor;   during  recess,  President  of  Senate;  during 

recess,  Speaker  of  House;  Legislature  to  provide  by  law." 
(n)   Secretary  of  State.^* 
(o)    Secretary  of  State;  President  of  the  Senate.^* 

11.  Consent  to  Removal  of  Judicial  Officers,  Justices  of 
THE  Peace  and  Notaries  Public,  (a)  Judicial  Officers.  —  Only 
three  States  have  constitutional  provision  for  action  by  the  Gov- 
ernor in  the  removal  of  judicial  officers:  — 

1  Connecticut,  Nevada,  North  Carolina,  Pennsylvania,  Rhode  Island,  South  Carolina,  Texas. 
'  California,  Colorado,  Idaho,  Illinois,  Iowa,  Kansas,  Mississippi,  Missouri,  Montana,  Nebraska,  New 
York,  Ohio,  Oklahoma  (adds,  Legislature  to  provide). 
'  Louisiana. 

*  Kentucky. 
'  Alabama. 

•  Michigan,  North  Dakota,  South  Dakota,  Wisconsin. 
'  New  Mexico. 

'  Delaware. 

'  Washington. 

w  Indiana,  Virginia,  Vermont. 

"  Arkansas,  Florida,  Georgia,  Maine,  New  Hampshire,  New  Jersey,  Tennessee. 

^  West  Virginia. 

w  Maryland. 

"  Arizona,  Wyoming, 

16  Oregon,  Utah. 


120 

California:  Judicial  officers,  except  justices  of  the  peace,  may  be 
removed  by  the  Senate  on  the  recommendation  of  the  Governor; 
but  justices  of  highest  court,  intermediate  court  of  appeals  and  gen- 
eral trial  courts  may  be  removed  by  a  concurrent  resolution  of  both 
houses  of  the  Legislature  by  a  two-thirds  vote  of  each  house. 

New  York:  Judicial  officers,  except  justices  of  the  peace  and 
judges  of  inferior  courts,  not  of  record,  may  be  removed  by  the 
Senate  on  the  recommendation  of  the  Governor;  but  justices  of 
the  highest  court  and  intermediate  courts  may  be  removed  by  con- 
current resolution  of  both  houses  of  the  Legislature  by  a  two-thirds 
vote  of  each  house. 

Maine:  Judicial  officers  may  be  removed  by  the  Governor  on 
address  of  both  branches  of  the  Legislature. 

Only  eight  constitutions  contain  provisions  relating  to  the  removal 
of  justices  of  the  peace  for  malfeasance  in  office;^  and  of  these, 
five  specifically  name  the  officer  who  shall  remove  the  offender, 
he  being  in  each  case  a  judicial  officer.^  In  the  other  States,  no 
removing  officer  is  named,  or  it  is  left  subject  to  legislative  regula- 
tion.^ The  right  to  trial  by  jury  is  expressly  reserved  in  one  con- 
stitution; ^  and  in  two,  the  accused  is  expressly  given  the  right  of 
appeal.^  In  none  does  the  removal  of  a  justice  of  the  peace  require 
the  consent  of  any  officer  or  body. 

(b)  Notaries  Public.  —  The  only  other  State  whose  constitution 
contains  a  provision  similar  to  that  of  Massachusetts  is  Georgia, 
where  notaries  public  are  "removable  upon  conviction  for  mal- 
practice in  office,"  but  no  provision  is  made  authorizing  any  par- 
ticular officer  or  body  to  remove  them.  They  are  appointed  by  the 
judges  of  the  Superior  Court  and  commissioned  by  the  Governor. 

12.   To  ATTEND  THE  GOVERNOR  IN  ADMINISTRATION  OF  THE  OaTH 

OF  Office  to  Senators  and  Representatives.  —  There  are  fifteen 
States  whose  constitutions  contain  provisions  for  the  administration 
of  the  oath  of  office  to  the  members  of  the  Legislature. 

In  Maine  and  New  Hampshire  the  administration  of  the  oath  is 
before  the  Governor  and  Council. 

1  Alabama,  Georgia,  Illinois,  Kentucky,  Maryland,  Ohio,  Tennessee,  Texas. 

2  Alabama  (by  general  trial  courts,  courts  of  like  jurisdiction,  or  by  criminal  court  of  county  in  which 
he  holds  office);  Illinois  (in  Chicago  by  summary  proceedings  in  circuit  or  superior  court);  Maryland 
(by  judge  or  judges  having  criminal  jurisdiction  in  the  county  or  city);  Tennessee  (liable  to  indictment 
in  such  courts  as  legislature  may  direct);  Texas  (by  judges  of  general  trial  court). 

3  Georgia,  Kentucky,  Ohio. 
*  Alabama. 

6  Alabama,  Kentucky. 


121 

In  the  other  States  it  is  before  the  Governor,  ^  Secretary  of  State,  ^ 
a  judge  of  the  Supreme  Court, ^  or  of  the  Circuit  ^  Court,  or  presiding 
oflficer  of  either  house,  ^  or  before  a  justice  of  the  peace  ^  or  person 
authorized  to  administer  an  oath,  ^  or  before  the  Attorney-General,  * 
or  the  members  themselves.® 

13.  Consent  to  Appointments  by  the  Governor,  when  the 
Legislature  is  not  in  Session,  to  fill  Vacancy,  until  a  Suc- 
cessor IS  CHOSEN  AND  QUALIFIED,  IN  Office  OF  (o)  Secretary  of 
State.  —  The  Governor  has  power  to  fill  a  vacancy  without  con- 
firmation in  all  the  States  except  Louisiana,  where  consent  must  be 
given  by  the  Senate. 

(6)  Treasurer.  —  The  Governor  has  power  to  fill  a  vacancy  without 
confirmation  in  all  the  States  except  Louisiana  and  Maryland,  where 
consent  must  be  given  by  the  Senate. 

(c)  Auditor.  —  The  Governor  has  power  to  fill  a  vacancy  without 
confirmation  in  all  the  States  except  Louisiana,  where  consent  must 
be  given  by  the  Senate. 

(d)  Attorney-General.  —  The  Governor  has  power  to  fill  a  vacancy 
without  confirmation  in  all  the  States  except  Louisiana,  where  con- 
sent must  be  given  by  the  Senate,  and  Maine,  where  consent  must  be 
given  by  the  Council. 

1  Idaho,  Oregon. 

2  Idaho,  Oregon,  Rhode  Island. 

»  Illinois,  Idaho,  !kIissouri,  Oklahoma,  Oregon,  Pennsylvania,  South  Dakota,  West  Virginia,  Wyoming. 

♦  Illinois,  Missouri,  South  Dakota,  West  Virginia. 
'  Idaho,  Missouri,  South  Dakota. 

•  West  Virginia,  Wyoming. 
'  Oklahoma,  West  Virginia. 
'  Rhode  Island. 

'  Iowa. 


122 


BIBLIOGRAPHY. 

Hoover,  T.  X.,  "Council,  Governor's,"  in  Cyclopedia  of  American  Govern- 
ment, I,  486.    New  York,  1914. 

Debates  and  Proceedings  in  the  Massachusetts  Constitutional  Convention. 
3  vols.  Boston,  1853.  Principally  Vol.  I,  437,  444;  449-486;  494-514; 
526-534;  966-986. 

New  York  State  Constitutional  Convention  Commission,  Index  Digest  of  State 
Constitutions.    New  York,  1915. 

Thorpe,  F.  N.  The  Federal  and  State  Constitutions.  7  vols.  Washington, 
D.  C,  1909. 

Annual  Reports  of  the  Auditor  of  Massachusetts,  1906  to  1915. 


123 


Supplement. 


STATUTORY   POWERS   AND   DUTIES    OF   THE   GOVERNOR   AND 

COUNCIL. 


Convention  Documei^t  No.  365. 


Prepared  by  the  Commission  to  compile  Information  and  Data  for  the  Use  of 
THE  Constitutional  Convention. 


iNTRODrCTION. 

The  following  compilation  was  made  in  response  to  a  request  from 
a  committee  of  the  Convention  for  information  as  to  the  powers  and 
duties  conferred  upon  the  Governor  and  Council  by  statute.  No  such 
compilation  has  ever  been  made.  It  is  a  work  of  great  difficulty 
because  of  the  fact  that  the  indexes  of  the  annual  volumes  of  session 
laws  contain  so  few  references  to  the  information  desired  as  to  be  of 
no  help,  and  hence  an  examination,  page  by  page,  of  all  the  enact- 
ments of  the  Legislature  now  in  force  would  be  necessary  in  order  to 
make  the  compilation  complete.  In  the  short  time  at  the  disposal  of 
the  Commission  such  an  examination  was  impossible,  and  therefore 
this  compilation  is  confined  to  the  laws  of  the  last  three  years,  — 
namely,  1915,  1916  and  1917.  "While  it  has  been  made  with  great 
care  it  is  possible  that  some  statutes  conferring  powers  upon  the 
Governor  and  Council  have  been  overlooked. 

No  one  can  examine  the  statutes  of  recent  years  without  being  im- 
pressed by  the  growing  tendency  of  the  Legislature  either  to  confer 
powers  and  duties  upon  the  Governor  and  Council  directly,  or  to  pro- 
vide that  the  action  of  other  officers  of  the  State  shall  be  subject  to 
their  approval.  The  number  of  acts  and  resolves  conferring  power 
upon  the  Governor  and  Council  enacted  in  1915  was  53.  In  1916  the 
number  of  such  measures  was  61  and  in  1917  it  was  37.  Some  of 
these  acts  contain  several  provisions  of  this  kind.  In  addition  to  the 
foregoing,  34  acts  and  resolves  were  passed  in  1915,  1916  and  1917 
conferring  power  upon  the  Governor  alone.  The  Constitution  of  the 
Commonwealth  and  the  statutes  which  deal  specifically  with  the 
powers  and  duties  of  the  Governor  and  Council  give  slight  indication 


124 

of  the  extent  of  those  functions  since  a  large  part  of  them  are  con- 
ferred as  incidental  to  other  legislation.  It  is  only  by  a  systematic 
examination  of  all  the  statute  law  of  the  Commonwealth,  such  as  is 
here  presented  for  the  past  three  years,  that  the  range  of  the  activities 
of   the   Governor  and   Council   would   appear. 

I.    Appointments  to  be  made  by  the  Governor  with  the  Advice  and 
Consent  of  the  Council. 

General  Acts,  1915. 
Chap.  79.    The  Board  of  Trustees  of  the  Grafton  State  Hospital. 
Chap.  129.    Certain  members  of  the  Homestead  Commission. 
Chap.  189.    The  Trustees  of  the  Norfolk  County  Agricultural  School. 
Chap.  301.    The  new  members  of  the  Board  of  Dental  Examiners.^ 
Chap.  304.    Additional  Masters  in  Chancery  for  certain  counties.^ 

Resolves,  1915. 

Chap.  20.  The  Pilgrim  Tercentenary  Commission,  a  special  commission  of 
seven. 

Chap.  58.  A  commission  to  consider  the  erection  of  a  monument  to  Col.  Henry 
TUlinghast  Sissin. 

Chap.  81.  A  special  board  to  report  as  to  the  advisabihty  of  providing  mili- 
tary education  for  boys,  etc. 

Chap.  95.     A  special  commission  to,  codify  the  laws  relating  to  State  highways. 

General  Acts,  1916. 
Chap.  46.    Members  of  the  Dairy  Bureau  of  the  Board  of  Agriculture  annually. 
Chap.  49.    Three  members  of  the  State  Board  of  Agriculture. 
Chap.  70.    Masters  in  Chancery  as  vacancies  occur.^ 
Chap.  241,  Sec.  3.    The  Director  of  Prisons. 

Sec.  4.     The  members  of  the  Advisory  Prison  Board. 

Sec.  5.    The  Board  of  Parole,  which  acts  as  advisory  Board  of  Pardons.^ 
Chap.  285,  Sec.  2.    Members  of  the  Commission  on  Mental  Diseases.^ 
Chap.  288,  Sec.  2.    The  members  of  the  Commission  on  Waterways  and  Public 

Lands. 
Chap.  296,  Sec.  2.    The  Supervisor  of  Administration.^ 
Chap.  297.    A  Civil  Service  Commissioner,  aimually. 
Chap.  303.    Members  of  the  Minimum  Wage  Commission. 

Special  Acts,  1916. 
Chap.  174.    The  Trustees  of  the  Independent  Industrial  Shoemaking  School  of 

Lynn. 
Chap.  310.    Board  of  Excise  of  Chelsea.^ 

'  Removals  are  made  in  like  manner. 


125 


Resolves,  1916. 

Chap.  30.    A  commission  to  consider  abolishing  the  office  of  trial  justice. 

Chap.  43.  A  commission  to  arrange  and  consolidate  the  General  Lav/s  of  the 
Commonwealth. 

Chap.  81.  A  special  commission  to  investigate  the  laws  relating  to  the  par- 
tition of  real  estate,  etc. 

Chap.  106.  Three  members  of  a  special  commission  to  make  an  investigation 
of  education  at  the  Massachusetts  Agricultural  College. 

Chap.  107.  The  Pilgrim  Tercentenarj^  Commission,  a  special  commission  of 
five.- 

Chap.  151.  A  commission  to  consider  the  erection  of  a  monument  in  memory 
of  Chevalier  de  Saint-Sauveur. 

General  Acts,  1917. 
Chap.  12.    The  Public  Administrators  of  the  various  counties. 
Chap.  63.    The  State  Forester.^ 

Chap.  321.    Members  of  the  Massachusetts  Bureau  of  Immigration.^ 
Chap.  325.    Two  of  the  members  of  the  Exposition  Building  Commission  for 

erecting  a  building  in  West  Springfield. 
Chap.  326.    Justices  of  the  Peace  to  act  as  trial  justices  in  certain  towns. ^ 
Chap.  327,  Sec.  40.    One  of  the  Armory  Commissioners. 
Chap.  344,  Part  1,  Sec.  1.    A   member   of   the   State   Highway   Commission, 

annually. 

Resolves,  1917. 
Chap.  102.    A  commission  to  investigate  the  laws  relating  to  dogs. 
Chap.  129.    Two  of  the  members  of  the  special  commission  to  investigate 
problems  relating  to  street  railways. 

II.    Appointments  requiring  the  Approval  of  the  Governor  and 

Council. 

General  Acts,  1915. 
Chap.  238.    A  fourth  assistant,  appointed  by  the  Tax  Commissioner. 
Chap.  294.    The  head  of  the  Department  of  University  Extension,  appointed 
by  the  Board  of  Education. 

General  Acts,  1916. 
Chap.  40.    Employees  in  the  Insurance  Commissioner's  office,  appointed  by 

the  Commissioner.^ 
Chap.  269,  Sec.  17.    An  income  tax  assessor  for  each  income  tax  district  of  the 

Commonwealth,  deputy  income  tax  assessors,  and  then*  assistants,  all 

appointed  by  the  Tax  Commissioner.^ 

'  Removals  are  made  in  like  manner. 


126 

Chap.  285,  Sec.  4.  Subordinate  officers  appointed  by  the  Director  of  the  Com- 
mission on  Mental  Diseases. 

Chap.  288,  Sec.  3.  Superintendents  of  Commerce  and  Engineering  appointed 
by  the  Commission  on  Waterways  and  Public  Lands. 

Chap.  296.    Deputies  appointed  by  the  Supervisor  of  Administration. 


Ill,    Salaries,    Compensation,    etc.,    requiring   the    Approval    of    the 
Go\'i:rnor  and  Council. 

General  Acts,  1915. 

Chap.  31,  Sec.  6.  The  compensation  of  the  compiler  of  records  of  Massa- 
chusetts soldiers  in  the  Civil  War  and  that  of  his  assistants. 

Chap.  238,  Sec.  6.  The  salary  of  the  fourth  assistant  of  the  Tax  Commissioner 
and  those  of  the  examiners. 

Chap.  241.  The  salaries  of  officials  of  State  institutions  appoiated  by  the  State 
Board  of  Insanity. 

Chap.  296.  The  salary  of  the  clerk  employed  by  the  State  Examiners  of 
Electricians. 

Resolves,  1915. 

Chap.  95.  The  compensation  of  the  Commission  to  Codify  the  Laws  relating 
to  State  Highways. 

Chap.  134.  The  compensation  of  the  Commission  to  Investigate  the  Advisa- 
bility of  Revising  the  Taxation  Laws. 

General  Acts,  1916. 

Chap.  2.  Increases  in  salaries  of  all  State  employees  whose  salaries  are  over 
$1,000. 

Chap.  236.  The  salaries  of  accountants  and  bookkeepers  employed  in  the 
Department  of  the  Auditor  of  the  Commonwealth. 

Chap.  241,  Sec.  3.    The  salary  of  the  Director  of  Prisons. 

Sec.  3.    The  salaries  of  the  deputies  of  the  Massachusetts  Bureau  of 

Prisons. 
Sec.  5.    The  compensation  of  the  Board  of  Parole  while  acting  as  Advi- 
sory Board  of  Pardons. 

Chap.  269,  Sec.  17.  The  salaries  of  the  Income  Tax  Assessors  and  of  the 
Deputy  Income  Tax  Assessors. 

Chap.  285.  The  salary  of  the  Director  of  the  Commission  on  Mental  Diseases, 
not  to  be  over  S7,500. 

Chap.  288,  Sec.  3.  The  salaries  of  the  Superintendents  of  Commerce  and 
Engineering,  appointed  by  the  Commission  on  Waterways  and  Public 
Lands. 

Chap.  296.  The  salaries  of  the  deputies  appointed  by  the  Supervisor  of  Ad- 
ministration. 


127 


Resolves,  1916. 

Chap.  81.    The  compensation  of  the  Commission  to  propose  revisions  of  laws 

relating  to  partition  of  real  estate,  etc. 
Chap.  157.    The  pay  for  clerical  assistance  of  the  special  recess  committee  on 

Social  Insurance. 
Chap.  158.    The  pay  of  certain  members  of  the  Commission  to  consider  the 

financial  condition  of  the  Boston  Elevated  Company. 

General  Acts,  1917. 
Chap.  28.    The  compensation  of  the  Commission  to  Compile  Information  for 

the  Constitutional  Convention. 
Chap.  63.    Salary  of  the  State  Forester. 

Chap.  321.    The  salaries  of  the  assistants  of  the  Bureau  of  Immigration. 
Chap.  342,  Sec.  24.    The  compensation  of  the  special  committee  appointed  by 

the  Board  of  Labor  and  Industry. 

IV.    Expenditures  requiring  the  Approval  of  the  Governor  and 

Council. 

General  Acts,  1915. 

Chap.  129.    Sums  for  expenses  of  the  Homestead  Commission. 

Chap.  279,  Sec.  7.  Sums  for  the  administration  expenses  of  the  Harbor  and 
Land  Commission. 

Chap.  296.  Sums  for  the  necessary  expenses  of  the  State  Examiners  of  Elec- 
tricians. 

Special  Acts,  1915. 

Chap.  24.  A  sum  of  $29,000  to  be  spent  by  the  Board  of  Panama-Pacific 
Managers  for  the  representation  of  the  Commonwealth  at  the  Exposition. 

Resolves,  1915. 

Chap.  81.  Certain  sums  for  the  necessary  expenses  of  the  Board  to  report 
as  to  providing  military  education  for  boys,  etc. 

Chap.  82.  Certain  sums  to  pay  for  moving  various  departments  to  new 
quarters. 

Chap.  85.  Certain  sums  to  be  spent  by  the  Harbor  and  Land  Commission 
for  reporting  on  the  use  of  beaches  in  Essex  County. 

Chap.  95.  Sums  for  necessary  expenses  of  the  Commission  on  Codifying  the 
Laws  relating  to  State  Highways. 

Chap.  127.    Certain  sums  for  purchasing,  etc.,  for  a  school  for  feeble-minded. 

Chap.  134.  Sums  for  the  expenses  of  the  Commission  to  investigate  the  ad- 
visability of  revising  the  Taxation  Laws. 

Chap.  138.  Sums  for  preparing  plans  for  an  Insane  Hospital  in  the  Metro- 
politan district. 


128 

Chap.  141.    Sums  for  the  expenses  of  the  committee  making  an  investigation 

of  the  "London  SUding  Scale"  system. 
Chap.  144.     Sums  for  the  necessaty  expenses  of  the  Commission  on  Terminal 

Facilities  of  the  Metropolitan  district. 
Chap.  147.    A  sum  of  $6,000  to  send  representatives  to  the  Panama-Pacific 

Exposition. 

General  Acts,  1916. 

Chap.  98,  Sec.  7.  The  Governor's  warrant  on  the  treasurj^  to  cover  the  ex- 
penses of  the  Constitutional  Convention,  is  subject  to  the  approval  of 
the  Council. 

Chap.  269,  Sec.  17.    Sums  for  the  expenses  of  the  Deputy  Income  Tax  Assessors. 

Special  Acts,  1916. 

Chap.  13.  A  sum  of  $100,000  for  "extraordinary  expenses"  of  the  Common- 
wealth. 

Chap.  225.  The  balance  of  the  appropriation  to  the  Board  of  Managers  of  the 
Panama-Pacific  Exposition  for  the  return  of  exhibits. 

Chap.  367.  The  appropriation  for  the  examination  as  to  salaries  paid  to  State 
and  county  officials. 

Resolves,  1916. 

Chap.  88.  Certain  sums  for  labor  for  draining  low  lands  at  the  Reformatory 
for  Women. 

Chap.  90.  Certain  sums  for  clerical  assistance  of  the  Board  investigating 
physical  training  for  boys  and  girls  in  public  schools. 

Chap.  92.  Certain  suras  for  clerical  assistance  of  the  Board  making  investi- 
gation of  the  establishment  of  a  State  Constabulary. 

Chap.  94.  A  sum  of  $2,000  for  an  examination  into  the  salaries  of  certain 
State  officials. 

Chap.  106.  Certain  sums  for  necessary  expenses  of  the  Commission  to  investi- 
gate education  at  Massachusetts  Agricultural  College. 

Chap.  107.  Sums  for  the  Pilgrim  Tercentenary^  Commission  to  represent  the 
State  and  for  carrying  out  its  duties. 

Chap.  112.  Certain  sums  for  necessary  expenses  of  the  Commission  to  investi- 
gate the  use  of  habit  forming  drugs. 

Chap.  155.  A  sum  of  $5,000  re-appropriated  for  closing  the  affairs  of  the 
Board  of  Panama-Pacific  Managers  for  Massachusetts. 

Chap.  157.  Sums  for  the  necessary  expenses  of  the  Commission  on  Social 
Insurance. 

Chap.  158.  Sums  for  the  necessary  expenses  of  the  Commission  to  investigate 
the  financial  condition  of  the  Boston  Elevated  Railway  Company. 

Special  Acts,  Extra  Session,  1916. 
Chap.  375.    A  sum  of  $5,000  to  cover  expenses  of  providing  for  absent  voting 
by  men  in  military  service. 


129 


General  Acts,  1917. 
Chap.  28.    Sums  for  the  expenses  of  the  Commission  to  Compile  Information 

for  the  Use  of  the  Constitutional  Convention. 
Chap.  202.    Sums  for  the  necessary  expenses  of  the  Board  of  Examiners  of 

Chiropodists. 
Chap.  321.    Sums  for  necessary  expenses  of  the  Massachusetts  Bureau  of 

Immigration. 
Chap.  342,  Sec.  24.    Sums  for  the  necessary  expenses  of  the  special  committee 

appointed  by  the  Board  of  Labor  and  Industry. 
Sec.  27.     Funds  from  the  81,000,000  appropriated  for  military  and  naval 

purposes  may  be  used  to  defray  expenses  incurred  in  registering  alien 

enemies,  etc. 

Special  Acts,  1917. 

Chap.  4.    A  sum  of  $100,000  for  "extraordinary  expenses." 

Chap.  202.  A  sum  of  §1,000,000  for  defrajang  military  and  naval  expenses 
arising  from  the  possibilitj'  of  war. 

Chap.  210.  Certain  sums  for  expert  and  temporary  service  in  the  office  of  the 
Supervisor  of  Administration. 

Chap.  266.    A  sum  of  $250  for  investigating  the  acoustics  in  the  House  Chamber. 

Chap.  285.  A  sum  of  $50,000  for  incidental  expenses  connected  with  the  work 
of  the  Constitutional  Convention. 

Chap.  351.  A  sum  of  $100,000  for  developing  the  flats  in  South  Boston  and 
East  Boston. 

Chap.  369.  Certain  sums  for  preventing  the  spread  of  disease  due  to  mobi- 
lization of  troops. 

Chap.  369.  Certain  sums  to  paj^  for  temporary  detectives  to  guard  against 
e\'ils  incident  to  mobilization. 

Resolves,  1917. 
Chap.  29.    Certain  sums  for  properly  representing  the  State  at  the  G.  A.  R. 

encampment. 
Chap.  101.     Certain  sums  to  prepare  for  the  exigencies  of  anticipated  war. 
Chap.  129.     Sums  for  necessary  expenses  of  the  Commission  to  investigate 

problems  of  street  railways. 
Chap.  130.    Sums  for  the  necessary  expenses  of  the  Commission  on  Social 

Insurance. 


V.  Plans  and  Contracts  wtiich  require  the  Approval  op  the  Governor 

AND  Council. 

General  Acts,  1915. 
Chap.  256.    Contracts  for  completing  the  West  Wing  of  the  State  House. 
Chap.  279.    Contracts  for  improvement J|of  harbor  and  terminal  facilities  at 
Fall  River. 


130 


Resolves,  1915. 
Chap.  97.     Plans  for  work  of  protecting  certain  territory  in  Provincetown. 
Chap.  142.     Plans  for  improvements  at  the  Reformatory  for  Women. 

Resolves,  1916. 
Chap.  79.     Plans  for  a  memorial  to  certain  soldiers  to  be  erected  in  Porto  Rico. 
Chap.  160.     Plans  for  improvements  at  the  School  for  the  Feeble-minded  at 

Belchertown. 

General  Acts,  1917. 
Chap.  315.     Contracts  made  by  the  county  commissioners  of  Norfolk  County 

for  building  a  bridge  over  Monatiquot  River. 
Chap.  325.     Contracts  for  the  exposition  building  at  West  Springfield. 
Chap.  327,  Sec.  41.     Contracts  for  additions  to  State  armories. 
Chap.  344,  Sec.  10.     Contracts  for  State  highway  construction. 

Resolves,  1917. 
Chap.  127.     Plans  for  improvements  at  the  School  for  the  Feeble-minded  at 
Belchertown. 

VI.  Bonds  given  for  the  Fulfilling  of  Contracts,  which  are  subject 

TO  THE  Approval  of  the  Governor  and  Council, 

General  Acts,  1916. 
Chap.  251.     Certain  bonds  may  be  released  and  new  ones  substituted. 
Chap.  269,  Sec.  17.     Bond  to  be  furnished  by  officials  in  the  office  of  the  Tax 

Commissioner. 
Chap.  284,  Sec.  14.     Bond  furnished  by  the  paymasters  of  the  naval  militia. 

General  Acts,  1917. 
Chap.  327,  Sec.  70.     Bonds  o!"  paymasters  in  any  military  or  naval  force. 

Sec.  71.     Bonds  given  by  officers  of  military  or  naval  forces  to  whom 

public  property  is  issued. 
Sec.  73.     Bonds  arranged  for  by  the  adjutant-general. 

VII.  Bond  Issues  which  are  subject  to  the  Approval  of  the  Governor 

AND  Council. 

General  Acts,  1915. 
Chap.  4.     To  pay  for  immediate  work  on  Metropolitan  Parks,  etc. 
Chap.  5.     To  pay  for  immediate  work  on  parkways  and  boulevards. 
Chap.  188,  Sec.  2.     To  pay  for  improvemen's  on  the  southerly  bank  of  the 

Charles  River  Basin. 
Chap.  199,  Sec.  2.    To  pay  for  the  State's  share  of  expense  in  deepening  the 

channel  of  Weymouth  Fore  River. 


131 

Chap.  221,  Sec.  4.  To  pay  for  the  construction  of  certain  highways  in  West- 
ern Massachusetts.^ 

Chap.  229,  Sec.  21.     To  pay  for  a  highway  in  the  town  of  Ashburnham. 

Chap.  230,  Sec.  2.    To  pay  for  constructing  a  highway  from  Norton  to  Taunton. 

Chap.  232,  Sec.  2.  To  pay  for  improving  the  highway  from  Milford  to  South- 
borough. 

Chap.  242,  Sec.  2.  To  pay  for  improving  the  highway  between  Mashpee  and 
Barnstable. 

Chap.  243,  Sec.  2.    To  pay  for  extending  the  Alewife  Brook  Parkway. 

Chap.  256,  Sec.  3.    To  pay  for  West  Wing  of  the  State  House. 

Chap.  257,  Sec.  2.  To  pay  for  improving  the  highway  from  North  Brookfield 
and  Barre  Plains. 

Chap.  276,  Sec.  2.     To  pay  for  reconstructing  Wellington  Bridge. 

Chap.  279,  Sec.  5.  To  pay  for  improving  the  harbor  and  terminal  facilities  of 
Fall  River. 

Chap.  300,  Sec.  6.    To  pay  for  building  a  new  bridge  over  the  Neponset  River. 

Special  Acts,  1915. 
Chap.  368.     To  pay  for  building  a  bridge  over  the  Charles  River  between 
Newton  and  Weston. 

General  Acts,  1916. 
Chap.  181.    To  pay  for  completing  the  West  Wing  of  the  State  House. 
Chap.  186.     To  pay  for  improving  the  lands  given  to  the  Commonwealth  by 

Arlington.^ 
Chap.  203.     To  pay  for  improving  the  State  highway  in  Dracut  and  Methuen. 
Chap.  204.    To  pay  for  constructing  a  highway  from  Norton  to  Taunton. 
Chap.  219.    To  pay  for  improving  a  highwaj^  in  the  towns  of  Milford  and 

Hopkinton. 
Chap.  230.     To  pay  for  lands  acquired  and  for  construction  of  a  highway  in 

Revere. 
Chap.  235.     To  pay  for  constructing  a  parkway  from  Blue  Hills  Reservation 

to  Granite  Street,  Quincy. 
Chap.  237.     To  pay  for  completing  the  Dedham  parkway. 
Chap.  250.     To  pay  for  land  taken  by  the  State  House  Commission  on  the 

west  side  of  the  State  House. 
Chap.  310.    To  provide  additional  pay  for  Massachusetts  soldiers  in  the  Federal 

service  on  the  Mexican  border. 

General  Acts,  1917. 
Chap.  211,  Sec.  1.     To  provide  additional  pay  for  the  Massachusetts  soldiers 

in  the  volunteer  service  of  the  United  States. 
Chap.  220.    To  pay  for  the  completion  of  the  new  bridge  over  the  Neponset 

River. 
Chap.  285.     To  pay  for  extending  the  South  Metropolitan  Sewer  to  Wellesley. 

1  The  method  of  payment  and  time  of  payment  are  subject  to  like  approval. 


132 

Chap.  316,  Sec.  2.    To  pay  for  land  taken  for  a  boulevard  in  Quincy. 

Chap.  324,  Sec.  2.    To  pay  for  the  "emergency  expenses  incident  to  the  war." 

Chap.  327,  Sec.  43.    To  pay  for  land  taken  by  the  Armory  Commissioners, 

buildings  erected  and  armories  purchased. 
Chap.  331.    To  provide  for  the  expenses  of  the  State  Guard. 

VIII.    Orders  of  Departments  which  are  subject  to  the  Approval  op 
THE  Governor  and  Council. 

General  Acts,  1915. 
Chap.  6.     Rules  for  making  public  the  records  of  the  Civil  Service  Commission. 
Chap.  279,  Sec.  7.    Rules  laid  down  by  the  Harbor  and  Land  Commission. 

Special  Acts,  1915. 
Chap.  219.     Rules  of  the  Civil  Service  Commission  relating  to  the  superin- 
tendent of  the  north  city  hay  scales. 

General  Acts,  1916. 

Chap.  296,  Sec.  3.  Orders  by  the  Supervisor  of  Administration  for  change  in 
method  of  purchasing  in  any  department.  Official  failing  to  comply 
may  be  removed  by  the  Governor  with  the  advice  and  consent  of  the 
CouncU. 

Chap.  297,  Sec.  4.    Revision  of  the  Civil  Service  Rules. 

IX.    Rules  and  Regulations  made  by  the  Governor  and  Council. 

General  Acts,  1917. 
Chap.  342,  Sec.  4.     Restrictions  in  regard  to  alien  enemies  and  suspicious  persons. 
Chap.  344,  Part  5,  Sec.  30.    Regulations  regarding  travel  on  State  roads  and 
bridges. 

X.  Pensioning  and  Retiring  which  are  subject  to  the  Approval  of 

THE  Governor  and  Council. 

General  Acts,  1915. 
Chap.  95.    Civil  War  Veterans  after  five  years'  service. 

General  Acts,  1916. 
Chap.  273.     Persons  employed  in  prison  service  in  the  Commonwealth. 

XI.  Assignment  of  Quarters  and  Offices  which  require  the  Approval 

OF  THE  Governor  and  Council. 

General  Acts,  1915. 
Chap.  294.    The  quarters  of  the  Department  of  University  Extension. 


133 


General  Acts,  1917. 

Chap.  28,  Sec.  3.    Quarters  for  the  Commission  to  Compile  Information  for 
the  Constitutional  Convention. 

Special  Acts,  1917. 
Chap.  307.    The  quarters  of  the  Police  Commissioner  of  Boston. 

XII.    Emergency  Measures  which  may  be  taken  by  the  Governor,  with 
THE  Approval  of  the  Council. 

General  Acts,  1917. 
Chap.  324.    Emergency  expenses  up  to  $1,000,000  may  be  incurred. 
Chap.  342,  Sec.  2.    Certain  persons  above  the  age  of  18  years  may  be  required 
to  register. 
Sec.  3.    The  method  of  registration,  restrictions  as  to  movements,  etc., 

of  those  registered. 
Sec.  6.    Certain  articles  of  military  value  may  be  requisitioned,  a  reason- 
able price  to  be  paid  therefor. 
Sec.  12.     Power  for  carrying  this  act  into  effect  may  be  conferred  on  cer- 
tain persons. 
Sec.  23.    Investigations  as  to  cost  of  food,  etc.,  in  case  of  emergency,  may 

be  undertaken. 
Sec.  25.    The  use  of  fireworks  may  be  regulated. 


XIII.    Transfer,  Taking,  and  Use  op  Land  which  require  the  Approval 
OF  THE  Governor  and  Council. 

General  Acts,  1915. 

Chap'.  256,  Sec.  1.    Land  taken  by  the  State  House  Commission  for  completing 
the  West  Wing  of  the  State  House. 

Special  Acts,  1915. 
Chap.  329.    The  sale  of  certain  land  by  the  Trustees  of  the  Massachusetts 
Agricultural  College. 

General  Ads,  1916. 
Chap.  127,  Sec.  2.    The  use  of  State  property  by  United  States  volunteer 

military  or  naval  forces. 
Chap.  136.    Land  taken  by  the  State  Forest  Commission  for  cultivation  of 

timber. 
Chap.  207.    The  transfer  by  the  Governor  of  certain  land  in  Framingham 

belonging  to  the  State,  for  the  erection  of  a  military  monument. 
Chap.  250.    Land  taken  by  the  State  House  Commission  for  the  completion 

of  the  West  Wing  of  the  State  House. 


134 


Special  Acts,  1916. 
Chap.  317.    The  exchange  of  certain  lands  by  the  Massachusetts  Agricultural 

College. 
Chap.  355.     Charges  may  be  made  by  the  Governor  and  Council  for  land  in 

Framingham  used  by  certain  railroads. 

Resolves,  1916. 
Chap.  130.    Purchase   of   certain  lands   by   the   Massachusetts   Agricultural 
College. 

General  AcU,  1917. 
Chap.  147.     The  exchange  of  certain  lands  by  the  Armory  Commissioners. 
Chap.  158.     The  exchange  of  certain  property  of  the  Taunton  State  Hospital 

by  the  Commission  on  Mental  Diseases. 
Chap.  310,  Sec.  1.     The  purchase  of  land  by  the  Homestead  Commission  to 

relieve  congestion. 
Chap.  325,  Sec.  2.     The  lease  of  land  for  the  erection  of  a  building  at  the  West 

Springfield  Exposition,  and  terms  of  lease. 
Chap.  327,  Sec.  21.     The  use  of  lands  belonging  to  the  State  by  the  United 

States  volunteer  military'  forces. 
Sec.  41.     The   taking   of  land  by   the  Armory   Commission  for   parade 

grounds,  etc. 
Chap.  344,  Part  I,  Sec.  18.     The  taking  of  land  for  securing  road  material,  by 

the  State  Highway  Commission. 

Special  Acts,  1917. 
Chap.  213.     Conveyance  of  land  by  the  Armory  Commission  to  the  towTi  of 
Woburn. 


XIV.     Military  Measures  requirixg  either  the  Approval  of  the  Gov- 
ernor AND   COUN'CIL   OR   OF   THE   COUXCIL   AlOXE. 

General  Acts,  1916. 
Chap.  127,  Sec.  1.     The  transfer  of  the  State  naval  or  military  forces  into 
Federal  service. 

General  Acts,  1917. 
Chap.  327,  Sec.  18.     During    military    maneuvers    safety    regulations    as    to 
traffic  may  be  made. 
Sec.  20.     The  transfer   of   Massachusetts   military'   and   naval   forces   to 

Federal  ser\dce. 
Sec.  41.     Erection  of  buildings  needed  for  the  use  of  the  militia. 
Sec.  42.     Purchase  of  certain  second  class  armories,  drill  fields,  etc. 


135 


XV,    Miscellaneous  Transactions  requiring  the  Approval  of  the  Gov- 
ernor AND  Council, 

General  Acts,  1915. 

Chap.  139.     The  transfer  of  unexpended  sums  to  certain-  sinking  funds  by  the 

Treasurer  and  Receiver-General. 
Chap.  184.     The  removal  of  aged  prisoners  in  the  State  Prison  to  the  State 

Farm  by  the  officers  of  the  State  Prison. 

Special  Acts,  1915. 
Chap.  363.     The  construction  of  a  street  railway  from  Summer  Street  to  Com- 
monwealth Pier  by  the  Directors  of  the  Port  of  Boston. 
Chap.  369.     Printing  the  account  of  the  Spencer  trial  by  the  Attorney-General. 

Resolves,  1915. 

Chap.  5.  The  issuance  of  a  duplicate  interest-bearing  bond  to  replace  a  lost 
one. 

Chap.  141.  An  estimate  of  the  probable  expenses  of  the  Commission  investi- 
gating the  "London  Shding  Scale"  System. 

General  Acts,  1916. 

Chap.  183.  Cheap  iron  buildings  for  accommodating  prisoners  erected  by  the 
prison  commissioners. 

Chap.  192.  Investment  of  certain  funds  of  the  Commonwealth  by  the  Treas- 
urer and  Receiver-General. 

Chap.  239.  The  temporary  release  of  life  patients  in  an  Insane  Hospital  by  the 
superintendent. 

Chap.  248.     The  publishing  of  reports  of  capital  trials  by  the  Attornej'-General. 

Chap.  285  Sec.  4.  The  work  of  the  Director  of  the  Commission  on  Mental 
Diseases. 

Resolves,  1916. 
Chap.  86.     The  town  of  Framingham  may  construct  a  drain  through  the  State 
Camp  Grounds,  if  so  allowed  by  the  Governor,  with  the  approval  of  the 
Council. 

General  Acts,  1017. 

Chap.  28,  Sec.  2.  The  printing  of  material  for  the  use  of  the  Constitutional 
Convention. 

Chap.  344,  Part  I,  Sec.  10.  Construction  of  State  highways  in  excess  of  ten 
miles  in  any  county. 

Chap.  343.  Transfer  of  certain  funds  from  the  ordinary  revenue,  the  Metro- 
politan Park  Commission's  funds,  the  ^Metropolitan  Sewerage  Com- 
mission's funds,  etc.,  for  temporarily  increasing  the  wages  of  certain 
State  employees. 


136 


Resolves,  1917. 
Chap.  127.    Changes  in  the  appropriation  for  the  school  at  Belchertown  made 
by  the  Commission  on  Mental  Diseases. 

XVI.    Miscellaneous  Provisions. 

Resolves,  1915. 

Chap.  129.    The  Governor  and  Council  shall  open  and  examine  the  votes 

cast  on  the  question  of  so  amending  the  Constitution  as  to  provide  for 

the  taking  of  land  to  relieve  congestion. 
Chap.  130.    The  Governor  and  Council  shall  open  and  examine  the  votes 

cast  on  the  question  of  so  amending  the  Constitution  as  to  allow  women 

to  vote. 
Chap.  140.    The  Governor  and  Council  shall  examine  the  votes  cast  on  the 

question  of  so  amending  the  Constitution  as  to  provide  for  an  income 

tax. 

General  Acts,  1916. 
Chap.  98,  Sec.  1.    The  Governor  and  Council  shall  examine  the  votes  cast  to 

determine  whether  or  not  a  constitutional  convention  shall  be  held. 
Chap.  296,  Sec.  7.    On  request  of  the  Council  the  Supervisor  of  Administration 

shall  make  a  report  on  the  estimates  for  appropriations  of  departments. 

General  Acts,  1917. 
Chap.  109,  Sec.  2.  Copies  of  the  votes  for  the  election  of  certain  officials  shall 
be  submitted  to  the  Governor  and  Council  by  the  Secretary  of  State. 
The  Governor  and  Council  shall  examine  the  same  and  determine  the 
result  of  the  election. 
Sec.  3.  A  duplicate  copy  of  the  voting  lists  of  precincts  shall  be  trans- 
mitted to  the  Governor  and  Council. 

Resolves,  1917. 
Chap.  29.    The  Governor  and  the  members  of  the  Council  shall  serve  on  the 
committee  representing  the  State  at  the  reception  of  the  G.  A.  R.  veterans. 


BULLETIN   No.   4 


THE    PARDONING    POWER 


CONTENTS. 


PAGE 

I.  Definitions, 141 

11.   Brief  Survey  of  Origin  and  Development  in  United  States,         .       .  141 

III.  In  whom  vested, 144 

A.  In  General, 144 

B.  In  Massachusetts, 145 

C.  In  Other  States  having  Council, 146 

D.  In  States  having  no  Council, 147 

1.  In  the  Governor  alone, 147 

2.  In  the  Governor  and  the  Board  of  Pardons,     .       .       .  147 

3.  In  the  Board  of  Pardons  alone, 148 

4.  In  the  Legislature  alone, 148 

IV.  Composition  of  Boards  of  Pardons, 148 

V.  Procedure  and  Regulations, 149 

VI.  Report  of  Action, 150 

VII.  Changes  proposed  in  the  Convention  of  1853,  and  Debates  thereon,  151 

Bibliography, 153 


THE  PARDONING  POWER. 


I.    DEFINITIONS. 

Most  of  the  State  constitutions,  in  conferring  the  pardoning  power 
upon  the  executive,  divide  the  various  exercises  of  clemency  into  the 
following  classes :  — 

A.  Commutation. 

B.  Pardon, 

C.  Remission  of  Fines,  Penalties  and  Forfeitures. 

D.  Reprieve. 

The  Constitution  of  Massachusetts  confers  upon  the  Governor, 
with  the  advice  of  the  Council,  the  "power  of  pardoning  offences." 
The  Supreme  Judicial  Court  of  Massachusetts,  in  a  written  opinion 
to  the  Governor  on  the  extent  of  his  power  to  grant  pardons,  has 
stated  that  this  power  is  comprehensive  and  that  it  includes  "not 
only  that  absolute  release  from  the  penalty  wdiich  is  referred  to 
commonly  as  a  pardon,  but  those  lesser  exercises  of  clemency  which 
are  described  as  conditional  pardon,  commutation  of  sentence  and 
respite  of  sentence."  ^  This  broad  interpretation  of  the  term  "  par- 
don "  renders  it  unnecessary  to  specify  the  various  kinds  of  execu- 
tive clemency  in  the  Constitution  of  this  Commonwealth. 

The  Constitution  of  the  United  States  specifies  "reprieves"  and 
"pardons."  ^ 

II.    BRIEF  SURVEY  OF  ORIGIN  AND  DEVELOPMENT  IN  UNITED 

STATES. 

In  England,  the  power  of  pardoning  offences  has  always  been  a 
prerogative  of  the  Crown. 

If  neither  pregnancy,  insanity,  non-identity,  nor  other  plea  wiU  avail  to  avoid 
the  judgment  and  stay  execution  consequent  thereupon,  the  last  and  surest 
resort  is  in  the  king's  most  gracious  pardon;  the  granting  of  which  is  the  most 

*  The  Opinion  of  the  Justices  to  the  Governor,  210  Mass.  609,  611. 
'  Constitution  of  the  United  States,  Art.  II,  Sect.  2. 


142 

amiable  prerogative  of  the  Crown.  .  .  .  The  king  himself  condemns  no  man; 
that  rugged  task  he  leaves  to  his  courts  of  justice;  the  great  operation  of  his 
sceptre  is  mercy.  His  power  of  pardoning  was  said  by  our  Saxon  ancestors  to 
be  derived  a  lege  suae  dignitatis;  and  it  is  declared  in  parliament,  by  statute  27 
Hen.  VIII,  c.  24,  that  no  other  person  hath  power  to  pardon  or  remit  any  treason 
or  felonies  whatsoever:  but  that  the  king  hath  the  whole  and  sole  power  thereof, 
united  and  knit  to  the  imperial  crown  of  this  jealm.^ 

Nevertheless,  Parliament  could  also  grant  pardons,^  and  such 
legislative  pardons  are  as  effective  as  those  granted  by  the  Crown, 
except  that  they  do  not  remove  certain  disabilities.  This  double 
source  of  pardons  in  England  gave  rise  to  some  confusion  and  a 
conflict  of  views  in  this  country,  in  relation  to  the  power  of  the 
legislatures  to  grant  pardons  where  the  constitutions  do  not  ex- 
pressly prohibit  them  from  so  doing  or  specifically  give  exclusive 
power  to  the  executive  or  a  board. ^ 

In  pre-Revolutionary  days  in  this  country,  when  the  government 
of  the  colonies  was  founded  in  royal  commissions  or  charters,  the 
power  of  pardoning  offences  was  usually  delegated  to  the  colonial 
administrative  representatives  of  the  Crown,  or  to  the  grantees 
named  in  the  charters. 

At  the  time  of  our  separation  from  Great  Britain,  the  power  to  grant  reprieves 
and  pardons  had  been  emplo^^ed  by  the  king  as  chief  executive  and  the  colonies 
had  been  accustomed  to  the  use  of  it  in  various  forms.  Hence  where  the  words 
to  grant  pardons  were  used  in  the  Constitution  they  referred  to  the  authority 
as  exercised  by  the  EngUsh  Crown  or  by  its  representatives  in  the  colonies. 
Chief  Justice  Marshall  said:  "As  the  power  has  been  exercised  from  time  im- 
memorial by  the  executive  of  that  nation  whose  language  is  our  language,  and 
to  whose  judicial  institutions  ours  bear  a  close  resemblance,  we  adopt  their 
prmciples  respecting  the  operation  and  effect  of  prescribing  the  manner  in  which 
it  is  to  be  used  by  the  person  who  would  avail  himself  of  it."  * 

The  Federal  Constitution  confers  upon  the  President  "power 
to  grant  Reprieves  and  Pardons  for  offences  against  the  United 
States  except  in  Cases  of  Impeachment."  ^ 

In  the  State  constitutions  framed  immediately  after  the  Revolution, 
the  pardoning  power  was  conferred  on  the  Governor  and  his  Council, 

1  4  Blackstone,  Commentaries,  397  (Sharswood  Ed.). 

2  4  Blackstone,  Commentaries,  401  (Sharswood  Ed.);  U.  S.  i).  Wilson,  7  Pet.  (32  U.  S.)  160. 
'  See  discussion  under  III,  post. 

«  Finley  and  Sanderson,  American  Executives  and  Executive  Methods,  85;  U.  S.  v.  Wilson  (1833),  7  Peters 
150. 

5  Constitution  of  the  United  States,  Art.  II,  Sect.  2. 


143 

where  there  was  one,  or  on  the  Governor  alone.  Of  the  seven  States 
that  originally  had  a  Council  and  abolished  it/  three  subsequently- 
established  a  Board  of  Pardons,^  three  left  the  power  in  the  Gov- 
ernor,^ and  one  leaves  it  to  the  Legislature  to  establish  a  council 
of  officers  of  State  which  shall  advise  the  Governor  in  the  granting 
of  pardons.^ 

The  first  constitution  to  establish  a  Board  of  Pardons  and  delegate 
to  it  the  power  of  pardoning  offences  was  that  of  New  Jersey,  of 
1844,  and  that  example  was  followed  subsequently  by  Nevada  in 
1864,  Florida  in  1868,  Idaho  in  1889  and  Utah  in  1895. 

The  first  variation  from  the  New  Jersey  plan  was  that  in  the  Con- 
stitution of  Minnesota  in  1857,  where  the  power  of  pardoning  of- 
fences is  conferred  upon  the  Governor  "in  conjunction  with"  a 
Board  of  Pardons.  This  practice  was  followed  by  North  Dakota 
in  1889. 

The  next  variation  came  in  the  Constitution  of  Pennsylvania  in 
1873,  which  provided  for  the  exercise  of  the  pardoning  power  by 
the  Governor  "upon  the  recommendation  in  writing"  of  a  Board  of 
Pardons  or  a  majority  thereof.  This  practice  was  followed  in 
Louisiana  in  1879,  South  Dakota  in  1889,  and  Delaware  in  1897. 

The  first  instance  where  the  consent  of  the  Senate  was  required 
to  any  exercise  of  the  pardoning  power  was  the  provision  in  the 
Constitution  of  Mississippi  in  1832,  which  is  still  in  force  and  which 
is  to  the  effect  that  all  remissions  of  forfeitures  by  the  Governor 
must  have  the  consent  of  the  Senate.  In  1854  the  Constitution 
of  Rhode  Island  was  altered  by  an  amendment  still  in  force  which 
requires  the  consent  of  the  Senate  to  all  pardons. 

In  1889  the  Constitution  of  Montana  established  a  Board  of 
Pardons  and  provided  that  the  granting  of  all  pardons  shall  be  only 
"with  the  approval"  of  the  Board.  No  other  constitution  employs 
that  phraseology. 

The  only  instances  where  the  establishment  of  the  Board  of 
Pardons  is  left  to  the  Legislature  are  in  Indiana  and  South  Carolina. 

In  the  Constitution  of  Indiana  of  1851  it  is  provided  that  the  Legis- 
lature may  establish  a  council  of  officers  of  State  without  whose 
approval  the  Governor  shall  not  pardon;  and  in  the  Constitution  of 

1  See  Bulletin  No.  3,  The  Abolition  of  the  Governor's  Council. 

2  Delaware  (in  1897),  Pennsylvania  (in  1873),  Rhode  Island  (in  1854,  Senate  acting  as  Board  of  Pardons). 
'  Maryland,  Virginia,  Vermont. 

*  South  Carolina  (in  1895). 


144 

South  Carolina  of  1895,  it  is  provided  that  the  Legislature  may 
establish  a  council  of  officers  of  State  to  advise  the  Governor  in  the 
granting  of  pardons. 

In  1901  the  Constitution  of  Alabama  established  a  Board  of 
Pardons  which  is  advisory  only,  and  before  whom  are  to  be  laid 
only  applications  for  pardon,  commutation  or  parole  in  cases  of 
felony.  That  seems  to  be  the  only  State  where  the  recommendation 
or  approval  of  the  Board  of  Pardons  is  not  a  prerequisite  to  the  valid 
exercise  of  the  pardoning  power. 

III.    IN  WHOM  VESTED. 
A.    In  General. 

The  President  of  the  United  States  has  "power  to  grant  Reprieves 
and  Pardons  for  offences  against  the  United  States  except  in  Cases 
of  Impeachment."^  "The  Constitution  does  not  forbid  pardon  be- 
fore conviction.  Therefore,  it  may  follow  immediately  the  commis- 
sion of  an  offence,  but  not  ...  go  before.  To  attempt  the  latter 
would  be  an  encroachment  upon  powers  exclusively  legislative;  in 
other  words,  it  would  be  an  endeavor  to  annul  the  law  of  the  land."  ^ 

With  the  exception  of  six,^  the  State  constitutions  expressly  permit 
the  exercise  of  the  pardoning  power  only  "after  conviction." 

Except  in  Connecticut,  the  pardoning  power  is  vested  in  the  Gov- 
ernor, or  in  a  Board  of  Pardons  or  Council,  or  in  both.  Although, 
with  few  exceptions,  none  of  the  constitutions  expressly  limits  the 
exercise  of  the  power  to  the  executive  department,  or  prohibits  the 
Legislature  from  exercising  it,^  and  although  many  expressly  provide 
that  its  exercise  shall  be  subject  to  general  regulations  prescribed  by 
law,  yet,  inasmuch  as  the  constitutions  usually  make  the  division 
between  the  departments  of  government  complete  and  forbid  any  one 
of  the  three  departments  to  exercise  powers  properly  belonging  to 
another,  the  weight  of  legal  opinion  is  that  pardons,  being  grantable 
under  constitutional  provision  by  the  executive,  cannot  be  granted  by 
the  Legislature.  Moreover,  the  constitutions  usually  forbid  the 
passage  of  any  special  or  private  law;    and  it  would  probably  be  a 

'  Constitution  of  the  United  States,  Art.  II,  Sect.  2. 

2  Bishop,  New  Criminal  Law,  8th  ed.,  I,  904. 

'  Kansas,  Kentucky,  Maryland,  Oregon,  Vermont,  Washington. 

♦  The  Constitution  of  Vermont  expressly  provides  that  no  person  ought  to  have  this  sentence  on  con- 
viction for  felony  commuted,  remitted  or  mitigated  by  the  Legislature;  and  the  Constitution  of  Mississippi 
gives  the  Legislature  power  to  provide  for  the  commutation  of  sentence  of  convicts  for  good  behavior. 


145 

violation  of  such  provision  for  the  Legislature  to  pardon  an  individual 
person. 

It  is  to  be  noted,  however,  that  in  the  constitutions  of  many 
States,  the  exercise  of  the  pardoning  power  is  expressly  made  sub- 
ject to  regulations  prescribed  by  the  Legislature,  either  in  general 
or  as  to  some  particular  phase  of  procedure.^  That  gives  to  the 
Legislature  in  such  States  a  participation  in  the  pardoning  power 
in  a  general  way,  though  not  in  any  individual  petition  for  pardon. 
Legislative  pardons  are  not  common  in  this  country.  On  the  nature 
of  the  pardoning  power  the  Supreme  Court  of  the  United  States  said 
in  a  leading  case: 

Whether  the  power  to  pardon  is  an  exclusively  executive  function  has  been 
much  debated,  and  authorities  naay  be  found  for  either  contention.  It  is  as- 
sumed in  all  the  constitutions  that  it  needs  to  be  conferred  on  the  executive  in 
order  to  be  rightfully  exercised.  Under  the  Federal  Constitution  legislation  has 
conferred  upon  the  Secretary  of  the  Treasury  power  to  remit  fines  and  for- 
feitures. The  practice  commenced  in  1797  and  was  in  accordance  with  legis- 
lation in  England,  which,  without  interfering  with  the  power  of  pardon  belonging 
in  the  crown,  invested  certain  subordinate  officers  with  authority  to  remit 
penalties  and  forfeitures  arising  from  violations  of  the  revenue  laws  of  that 
country;  it  was  upheld  by  the  Supreme  Court  in  1885,  as  justified  by  such  a 
long  practice  and  acquiescence  as  to  amount  to  a  settled  interpretation  of  the 
Constitution.  But  the  power  of  pardon  conferred  by  the  Constitution  upon 
the  President  is  unlimited,  except  in  cases  of  impeachment. ^ 

B.    In  Massachusetts. 

The  Constitution  of  Massachusetts  provides  as  follows:  "The 
power  of  pardoning  offences,  except  such  as  persons  may  be  con- 
victed of  before  the  Senate  by  an  impeachment  of  the  House,  shall 
be  in  the  Governor,  by  and  with  the  advice  of  the  Council;  but  no 
charter  of  pardon,  granted  by  the  Governor,  with  advice  of  Council, 
before  conviction,  shall  avail  the  party  pleading  the  same,  notwith- 
standing any  general  or  particular  expressions  contained  therein, 
descriptive  of  the  offence  or  offences  intended  to  be  pardoned." 
(Part  II,  Chap.  II,  Sect.  1,  Art.  VIII.)  On  the  question  of  the 
extent  of  the  power  of  the  Governor  and  his  Council  under  that 
provision,  the  Supreme  Judicial  Court,  in  a  written  opinion  to  the 
Governor,  has  stated  as  follows: 

1  See  post,  147. 

2  Ex  parte  Garland  (1866j,  4  Wall.  333. 


146 

The  unmistakable  meaning  of  these  words  is  that  he  can  act  only  in  con- 
formity to  the  advice  of  the  Council.  He  may  decline  to  take  action  although 
the  Council  advise  him  to  do  so.  Responsibility  for  granting  a  pardon  rests 
upon  the  Governor  and  he  cannot  be  compelled  to  take  such  action  by  the 
Council.  .  .  .  The  Governor  is  not  required  to  ask  the  advice  of  the  Council 
in  forming  his  opinion.  He  may  refuse  to  pardon  without  first  referring  the 
matter  to  the  CouncU.  But  if  he  desires  to  grant  a  pardon,  he  must  take  the 
advice  of  the  Council  before  undertaking  to  act.  .  .  .  The  power  to  pardon  as 
vested  in  the  Governor  is  not  absolute  but  conditional,  and  that  condition  is 
that  it  shall  be  exercised  in  accordance  with  the  advice  of  the  Council.  .  .  .  The 
same  principle  applies  whether  the  act  be  a  complete  or  a  modified  pardon.  A 
commutation  of  sentence,  which  is  the  substitution  of  a  lighter  for  a  more  severe 
punishment,  is  an  exercise  of  the  pardoning  power  and  must  be  in  accordance 
with  the  Constitution.  It  is  an  act  of  the  Governor  wliich  becomes  effective 
only  when  concurred  in  by  the  Council.^ 


C.    In  Other  States  having  Council. 

In  New  Hampshire,^  the  provision  is  identical  with  that  of  Massa- 
chusetts. 

In  Maine,  the  Governor  has  power,  "with  the  advice  and  consent 
of  the  Council,  to  remit,  after  conviction,  all  forfeitures  and  penalties, 
and  to  grant  reprieves,  commutations  and  pardons,  except  in  cases 
of  impeachment,  upon  such  conditions  and  with  such  restrictions 
and  limitations,  as  may  be  deemed  proper,  subject  to  such  regula- 
tions as  may  be  provided  by  law,  relative  to  the  manner  of  applying 
for  pardons.  And  he  shall  communicate  to  the  Legislature  at  each 
session  thereof,  each  case  of  reprieve,  remission  of  penalty,  com- 
mutation or  pardon  granted,  stating  the  name  of  the  convict,  the 
crime  of  which  he  was  convicted,  the  sentence  and  its  date,  the 
date  of  the  reprieve,  remission,  commutation  or  pardon,  and  the 
conditions,  if  any,  upon  which  the  same  was  granted."  ^ 

1  The  Opinion  of  the  Justices,  210  Mass.  609,  611.    See  also  Opinion  of  tlie  Justices,  190  Mass.  616. 

2  Constitution  of  New  Hampshire,  1902,  Art.  51. 

»  Constitution  of  Maine,  Part  I,  Art.  V,  Sect.  11. 


147 

D.    In  States  having  no  Council. 

1 .     In  the  Governor  alone. 

In  twenty-five  States,  the  Governor  has  sole  power  to  commute.^ 
In  thirty-two  States,  he  has  sole  power  to  pardon,  except  in  cases 
of  treason  or  impeachment,  or  both,^ 

In  twenty  States,  he  has  sole  power  to  remit  fines  and  forfeitures.^ 
In  forty  States,  he  has  sole  power  to  grant  reprieves.^ 

2.     In  the  Governor  and  Board  of  Pardons. 

In  seven  States,  the  Governor  has  power  to  commute  on  recom- 
mendation of  the  Board  of  Pardons,^  in  conjunction  with  it,^  or  with 
the  approval  of  the  Board  or  the  Council.^ 

In  ten  States,  the  Governor  has  power  to  pardon  on  recommenda- 
tion of  the  Board  of  Pardons,^  in  conjunction  with  it,^  or  with  the 
approval  of  the  Board  or  the  Council.^° 

'  Alabama  (Board  of  Pardons  advisory  only),  Arkansas,  Arizona,  California  (but  neither  Governor  nor 
Legislature  to  have  power  to  grant  commutation  of  sentence  in  any  case  where  convict  has  been  twice 
convicted  of  felony,  except  upon  written  recommendation  of  a  majority  of  the  judges  of  the  highest  court), 
Colorado,  Georgia,  Iowa,  Illinois,  Indiana,  Kentucky,  Michigan,  Missouri,  Nebraska,  North  Carolina, 
New  York,  Ohio,  Oklahoma,  Oregon,  South  Carolina,  South  Dakota  (where  sentence  is  for  2  years  or 
less,  or  fine  is  $200  or  less),  Texas,  Virginia,  West  Virginia,  Wisconsin,  Wyoming. 

-  Alabama  (Board  of  Pardons  advisory  only),  Arkansas,  Arizona,  California  (but  neither  Governor  nor 
Legislature  to  have  power  to  grant  pardon  in  any  case  where  convict  has  been  twice  convicted  of  felony, 
except  upon  written  recommendation  of  a  majority  of  the  judges  of  the  highest  court),  Colorado,  Georgia, 
Iowa,  Illinois,  Indiana  (but  Legislature  may  create  council  of  officers  of  State  without  whose  consent 
Governor  may  not  pardon),  Kansas,  Kentucky,  Maryland,  Michigan,  Mississippi,  Missouri,  Nebraska, 
New  Mexico,  North  Carolina,  New  York,  Ohio,  Oklahoma,  Oregon,  South  Carolina  (but  Legislature  may 
create  council  to  advise  Governor),  South  Dakota  (where  sentence  is  for  2  years  or  less  or  fine  is  S200  or 
less),  Tennessee,  Texas,  Virginia,  Vermont,  West  Virginia,  Washington,  Wisconsin,  Wyoming. 

>  Alabama,  Arkansas,  Delaware,  Georgia,  Iowa,  Indiana,  Kentucky,  Maryland,  Mississippi,  New 
Mexico  (no  fine,  penalty  or  judgment  against  an  officer  to  be  remitted),  Oregon,  Pennsylvania,  South 
Carolina,  South  Dakota  (if  fine  less  than  $200),  Texas,  Virginia,  Vermont,  West  Virginia,  Washington, 
Wyoming.  I 

•  Alabama  (Board  of  Pardons  advisory  only),  Arkansas,  Arizona,  California,  Colorado,  Connecticut 
(not  exceeding  end  of  next  session  of  Legislature),  Delaware  (not  exceeding  6  months),  Florida  (not  exceed- 
ing 60  days),  Georgia,  Illinois,  Indiana,  Iowa,  Idaho  (not  to  extend  bej-ond  next  session  of  Board  of  Par- 
dons), Kentucky,  Louisiana,  Maryland,  Michigan,  ^Mississippi,  Missouri,  Montana,  Nebraska,  Nevada, 
New  Jersey  (not  exceeding  90  days  after  conviction).  New  "iork.  North  Carolina,  New  Mexico,  Ohio, 
Oklahoma,  Oregon,  Pennsylvania,  Rhode  Island  (not  exceeding  end  of  next  session  of  Legislature),  South 
Carolina,  South  Dakota,  Tennessee,  Texas,  Utah  (not  to  extend  beyond  next  session  of  Board  of  Pardons), 
Virginia,  West  Virginia,  Wisconsin,  Wyoming. 

»  Delaware,  Louisiana,  Pennsylvania,  South  Dakota  (if  sentence  is  capital  punishment  or  imprisonment 
or  life  or  for  more  than  2  years  or  a  fine  of  more  than  $200). 

•  North  Dakota. 

'  Maine,  Montana. 

•  Delaware,  Louisiana,  Pennsylvania,  South  Dakota  (if  sentence  is  capital  punishment  or  imprison- 
ment for  life  or  for  more  than  2  years  or  a  fine  of  more  than  $200). 

»  Minnesota,  North  Dakota. 

•0  Indiana  (Legislature  may  create  council  of  officers  of  State  without  whose  consent  Governor  shall 
not  pardon),  Maine,  Montana,  Rhode  Island  (with  consent  of  Senate). 


148 

In  six  States,  the  Governor  has  power  to  remit  fines  and  for- 
feitures on  recommendation  of  the  Board  of  Pardons/  in  conjunc- 
tion with  it,^  or  with  the  approval  of  the  Board  or  the  Council.^ 

In  three  States,  the  Governor  has  power  to  grant  reprieves  in  con- 
junction with,^  or  with  the  approval  of  the  Board  or  the  Council.^ 

3.     In  Board  of  Pardons  alone. 
In  four  States,^  the  Board  of  Pardons  has  power  to  commute. 
In  five  States,'^  the  Board  of  Pardons  has  power  to  pardon. 
In  five  States,^  the  Board  of  Pardons  has  power  to  remit  fines  and 
forfeitures. 
Nowhere  has  the  Board  of  Pardons  power  to  grant  reprieves. 

4.     In  the  Legislature  alone. 

Connecticut  is  the  only  State  in  which  the  Legislature  has  sole 
power  to  grant  pardons. 

Twenty-one  States  have  constitutional  provisions  prohibiting  the 
remission  of  fines  or  forfeitures  by  special,  local  or  private  law.^ 

IV.    COMPOSITION  OF  BOARDS  OF  PARDON. 

Sixteen  States  have  separate  boards  of  pardon  constituted  as 
follows :  — 

Alabama:  Attorney-General,  Secretary  of  State,  Auditor. 

Delaware:  Chancellor,  Lieutenant-Governor,  Secretary  of  State,  Treasurer, 
Auditor. 

Florida:  Governor,  Secretary  of  State,  Attorney-General,  Comptroller,  Com- 
missioner of  Agriculture. 

Idaho :  Governor,  Secretary  of  State,  Attorney-General. 

Louisiana:  Lieutenant-Governor,  Attorney-General,  presiding  judge  of  Court 
of  Conviction. 

Maine:  Governor,  Council. 

Massachusetts:  Governor,  Council. 

1  Louisiana,  South  Dakota  (where  fine  exceeds  S200). 

*  North  Dakota. 

•  Maine,  Mississippi  (with  consent  of  Senate),  Montana. 

*  North  Dakota,  Minnesota. 
6  Maine. 

6  Florida,  Idaho,  Nevada,  Utah. 

'  Florida,  Idaho,  Nevada,  New  Jersey,  Utah . 

'  Florida,  Idaho,  Nevada,  New  Jersey,  Utah. 

•  Alabama,  Arizona,  California,  Colorado,  Idaho,  Illinois,  Kentucky,  Louisiana,  Minnesota,  Missouri, 
Montana,  New  Mexico,  North  Dakota,  Oklahoma,  Pennsylvania,  South  Dakota,  Texas,  Utah,  Washington, 
West  Virginia,  Wyoming. 


149 

Minnesota:  Governor,  Attorney-General,  Chief  Justice  of  highest  court. 

Montana:  Secretary  of  State,  Attorney-General,  Auditor. 

Nevada:  Governor,  Attorney-General,  justices  of  highest  court. 

New  Hampshire:  Governor,  Council. 

New  Jersey:  Governor,  Chancellor,  judges  of  highest  court. 

North  Dakota:  Governor,  Attorney-General,  Chief  Justice  of  highest  court, 
two  quahfied  electors  appointed  by  the  Governor. 

Pennsylvania:  Lieutenant-Governor,  Secretary  of  State,  Attorney-General, 
Secretary  of  Internal  Affairs. 

South  Dakota:  Secretary  of  State,  Attorney-General,  presiding  judge  of 
court  of  conviction. 

Utah:  Governor,  Attorney-General,  justices  of  highest  court. 

From  the  above  tabulation,  it  will  be  seen  that  in  ten  of  the 
sixteen  States  having  a  Board  of  Pardons  the  Governor  is  a  member 
of  it. 

V.    PROCEDURE  AND  REGULATIONS. 

The  constitutional  provisions  as  to  procedure  in  the  matter  of 
pardons  are  on  the  whole  couched  in  general  terms.  The  most 
common  provision  is  to  the  effect  that  the  power  to  grant  pardons, 
commutations,  remissions  and  reprieves  shall  be  subject  to  the  regu- 
lations prescribed  by  law  relative  to  the  manner  of  applying  there- 
for; ^  or  merely  subject  to  regulations  prescribed  by  law.^  A  few 
constitutions  have  detailed  provisions  requiring  publication  of  notice 
of  the  filing  of  the  application,^  or  of  the  time  and  place  of  hearing.^ 
A  few  constitutions  require  a  "full"^  or  public  hearing  before  the 
Board,^  or  provide  that  the  sessions  of  the  Board  shall  be  prescribed 
by  the  Legislature,^  or  require  the  opinion  of  the  Board  to  be  in 
writing  ^  or  provide  that  the  Board  shall  meet  on  the  call  of  the 
Governor.^  Such  detailed  provisions  as  these  are  to  be  found  chiefly 
in  the  constitutions  of  the  newer  States. 

1  California,  Colorado,  Florida,  Georgia,  Idaho,  Illinois,  Maine,  Michigan,  Missouri,  Nebraska,  Nevada, 
North  Carolina,  North  Dakota,  New  York,  Ohio,  South  Dakota,  Utah,  Wisconsin,  Wyoming. 

2  Arizona,  Iowa,  Kansas,  Minnesota,  New  Mexico,  Oklahoma,  Oregon,  Washington. 

3  Idaho,  Maryland,  Mississippi,  Montana. 
*  Idaho,  Montana,  Pennsylvania,  Utah. 

5  Delaware,  Idaho,  Montana,  Pennsylvania,  South  Dakota,  Utah. 
'  Alabama,  Idaho,  Montana,  Pennsylvania,  South  Dakota,  Utah. 
'  Idaho,  Montana. 

'  Alabama,  Delaware,  Louisiana,  Pennsylvania,  South  Dakota. 
'  Alabama. 


150 


Yl.    REPORT  OF  ACTION. 

The  constitutions  of  nearly  all  the  States  require  the  Governor 
or  the  Board  of  Pardons  to  report  to  the  Legislature,  either  at  each 
regular  session  thereof/  biennially^  or  annually,'  each  case  of  com- 
mutation, pardon,  remission  or  reprieve  and  the  details  thereof.  A 
few  require  that  a  report,  in  more  or  less  detail,  be  filed  in  the  office 
of  the  Secretary  of  State;  "*  one  merely  provides  that  the  application 
and  decision  shall  be  open  to  public  inspection;  °  one  that  the  Gov- 
ernor shall  submit  to  the  Legislature  his  reasons  for  rejecting  the 
recommendation  of  the  Board;  ^  and  one  that  he  shall  report  each 
case  to  either  house  whenever  required.'' 

The  most  common  provision  of  this  nature  is  that  the  Governor 
or  Board  shall  communicate  to  the  Legislature  at  each  regular  session 
each  case  of  commutation,  pardon  or  reprieve  granted,  or  fine, 
penalty  or  forfeiture  remitted,  stating  the  name  of  the  convict,  the 
crime  of  which  he  was  convicted,  the  sentence,  its  date,  the  date  of 
commutation,  pardon,  remission  or  reprieve,  and  the  reasons|^for 
granting  the  same. 

In  Massachusetts,  although  the  Constitution  does  not  require 
a  report  of  action,  the  same  result  is  reached  in  another  way.  In 
compliance  with  the  request  contained  in  Chapter  50  of  the  Resolves 
of  the  General  Court  of  1860,^  the  Governor  transmits  annually  to 
the  Legislature  a  list  of  all  pardons  granted  during  the  year  preced- 
ing. The  report  of  each  case  sets  out  substantially  the  same  facts 
as  are  enumerated  in  the  detailed  provision  of  the  Constitution  of 
Maine  relating  to  report  of  action,®  and  in  the  constitutions  of  the 
other  States  here  discussed.  So  long,  therefore,  as  the  Governor  and 
Council  comply  with  that  request  of  the  Legislature,  there  is  no  need 
of  incorporating  into  the  Constitution  any  detailed;  provision  re- 
quiring report  of  action.     Whether  the  Governor  and^Council  must 

'  Alabama,  Arkansas,  California,  Delaware,  Florida,  Georgia,  Idaho,  Indiana,  Iowa,lMaine,  Michigan, 
Missouri,  Montana,  Nebraska,  Nevada,  North  Dakota,  Ohio,  Oklahoma,  Oregon,  South  Carolina,].South 
Dakota,  Utah,  Virginia,  Washington,  West  Virginia,  Wyoming. 

'  North  Carolina. 

'  Colorado,  New  York,  Wisconsin. 

*  Delaware,  Idaho,  Montana,  Pennsylvania,  South  Dakota,  Texas,  Utah. 
'  Kentucky. 

•  South  Carolina. 
'  Maryland. 

*  "Resolved,  That  the  Governor  and  Council  be  requested,  hereafter,  in  the^month  of  January,  in  each 
year,  to  communicate  to  the  General  Court  a  list  of  the  pardons  granted  during  thejyear  next  preceding, 
with  such  detailed  statements  as  in  their  judgment  the  public  good  may  require." 

•  See  page  146,  ante. 


151 

comply  is  almost  a  moot  question,  since  it  is  highly  improbable  that 
they  would  refuse  to  meet  so  reasonable  a  request,  especially  after 
having  pursued  an  opposite  course  for  more  than  a  half-century. 

No  such  report  is  required  by  the  Constitution  from  the  President 
of  the  United  States,  nor  from  the  executives  of  the  remaining 
thirteen  States.^ 


VII.    CHANGES  PROPOSED  IN  THE  CONVENTION  OF  1853. 

The  Convention  of  1853  having  decided  to  retain  the  Governor's 
Council  as  part  of  the  frame  of  government,  various  changes  in 
connection  with  the  exercise  of  the  pardoning  power  were  suggested 
and  debated,  but  none  were  adopted.^  Most  of  the  provisions  sug- 
gested are  to  be  found  in  the  constitutions  of  other  States. 

The  following  is  a  summary  of  the  proposed  reforms  and  the 
arguments  presented  on  both  sides  in  the  debates  thereon:  — 

A.  Publication  of  notice  of  application,  or  of  time  and  place  of 
hearing,  or  both. 

Arguments  in  support:  — 

1.  Increased  feeling  of  safety  in  the  community  resulting  from  the 
opportunity  to  know  of  the  application  and  to  present  objections. 

2.  The  Governor  and  Council  are  enabled  to  secure  more  complete 
information,  and  are  protected  against  mistakes  in  their  decision. 

3.  The  Governor  and  Council  should  hear  both  sides  of  the  case 
instead  of  only  one  side. 

4.  Added  expense  would  be  trivial  and  could  be  borne  by  the 
Commonwealth. 

Arguments  in  opposition :  — 

1.  An  absolute  pardon  restores  the  criminal  to  his  civil  rights,  and 
is  commonly  granted  after  he  has  gone  forth  from  prison  and  es- 
tablished a  good  reputation  among  his  fellow  citizens.  "Now,  what 
will  be  the  efiect  of  giving  notice  in  such  a  case?  The  effect  will 
be  to  bring  back  the  remembrances  of  the  transaction  which  made 
the  person  an  offender,  thus  blighting  his  hopes  forever,  after  he  has 
endeavored  by  years  of  unceasing  labor  to  regain  the  confidence  of 
his  friends  and  neighbors."  ^ 

'  Arizona,  Connecticut,  Illinois,  Kansas,  Louisiana,  Minnesota,  Mississippi,  New  Hampshire,  New 
Jersey,  New  Mexico,  Rhode  Island,  Tennessee,  Vermont. 
*  Debates  in  the  MagaachuHetta  Convention,  1863,  I,  986-986. 
»  Debates  in  the  Massachusetts  Convention,  18B3,  I,  974  (Davis). 


152 

2.  It  is  a  mark  of  distrust  of  the  Governor  and  Council,  and  a 
reflection  upon  their  performance  of  their  duty, 

3.  Many  criminals  would  be  barred  from  executive  clemency 
because  of  inability  to  obtain  funds  to  publish  notice  and  to  secure 
the  necessary  copies  of  the  record  of  the  case. 

4.  Advisable  to  exclude  from  the  Constitution  matters  of  pro- 
cedural detail,  which  are  more  adapted  to  legislative  action. 

B.  Notice  to  the  prosecuting  attorney  or  to  the  Attorney-Gen- 
eral of  each  application  for  pardon,  and  requiring  his  presence  at  the 
hearing. 

Arguments  in  support :  — 

1.  Such  ofhcer  is  acquainted  with  the  side  of  the  case  which  the 
Governor  and  Council  are  not  likely  to  hear  in  an  ex  parte  proceed- 
ing, and  can  therefore  assist  them  in  avoiding  mistakes  in  decision. 

2.  Increased  feeling  of  safety  in  the  community  because  of  op- 
portunity of  the  prosecuting  officer  to  present  objections. 

Arguments  in  opposition :  — 

1.  Whenever  necessary  the  Governor  and  Council  call  in  the 
prosecuting  officer  anyway. 

2.  The  prosecuting  officer  may  have  become  so  WTought  up  over 
the  case  as  to  be  unduly  prejudiced  against  the  petitioner,  and  thus 
possibly  defeat  the  purposes  of  justice. 

3.  Advisable  to  exclude  from  the  Constitution  matters  of  procedural 
detail,  which  are  more  adapted  to  legislative  action. 

4.  The  most  common  classes  of  petitions  do  not  involve  the  merits 
of  the  trial.  They  are  cases  (a)  where  there  are  circumstances  which 
mitigate  the  offence  which  the  convict  technically  committed; 
(b)  where  the  punishment  imposed  is  imprisonment  for  a  long  term 
of  years,  and  it  is  alleged  that  there  has  been  a  complete  reform  of 
character  in  the  convict;  and  (c)  where  the  convict  is  very  near 
death,  and  the  illness  or  disease  is  such  that  he  can  be  removed  from 
prison  without  injury  and  be  permitted  to  die  among  his  family. 


153 


BIBLIOGRAPHY. 

Bishop,  J.  P.     New  Commentaries  on  the  Criminal  Law.     2  vols.     Chicago, 

1892. 
Blackstone.     Commentaries  (Sharswood,  ed.).     2  vols.     Philadelphia,  1881. 
Debates   and  Proceedings  in   the   Massachusetts  Constitutional  Convention. 

3  vols.    Boston,  1853. 
New  York  State  Constitutional  Convention  Commission,  Index  Digest  of  State 

Constitutions.     New  York,  1915. 
Tho'pe,  F.  N.     The  Federal  and  State  Constitutions.     7  vols.    Washington, 

D.  C,  1909. 
Finley,   J.   H.,   and  Sanderson,  J.   F.     American  Executives  and  Executive 

Methods.    New  York,  1908. 


BULLETIN    No.    5 


A    SUMMARY    OF    EXISTING    LAWS    ON 
OLD    AGE    PENSION    SYSTEMS 


Note. 
The  material  contained  in  Bulletin  No.  5  is  taken  from  A  Report  of  a  Special  In- 
quiry relative  to  Aged  and  Dependent  Persons  in  Massachusetts,  published  by  the 
Bureau  of  Statistics  in  1916. 


CONTENTS 


PAGE 

Descriptive  Account  of  National  Old  Age  Pension  Systems, 159 

Voluntary  Old  Age  Insurance, IGO 

Compulsory  Old  Age  Insurance, 161 

Germany, 161 

France, 165 

Sweden, 166 

Austro-Hungary, 166 

Russia, 166 

Italy, 167 

Roumania, 167 

Netherlands, 167 

Greece, 168 

Luxemburg, 168 

Iceland, 169 

Non-contributory  Old  Age  Pensions, 169 

United  Kingdom, 169 

Denmark, 171 

New  Zealand, 172 

Australia, I'^S 

New  South  Wales, 17-1 

Bibliography, 175 


A  SUMMARY  OF  EXISTING  LAWS  ON  OLD  AGE 
PENSION  SYSTEMS. 


DESCRIPTIVE  ACCOUNT  OF  NATIONAL  OLD  AGE  PENSION  SYSTEMS. 

Introductory. 

In  preparing  the  following  matter,  an  endeavor  has  been  made  to  describe  briefly 
the  important  provisions  of  law  governing  the  administration  of  national  old  age 
pension  systems  now  in  existence,  and  to  present  certain  significant  data  with  refer- 
ence to  the  operation  of  these  systems.  The  bibliography  of  recent  literature  on  this 
subject,  forming  the  appendix  of  this  report,  is  evidence  of  the  present  widespread 
interest  in  old  age  pensions.  Although  much  information  of  comparatively  recent 
date  has  been  pubUshed,  it  has  appeared,  for  the  most  part,  in  what  may  be  termed 
"secondary  sources",  and  for  this  reason  it  has  been  deemed  advisable  to  consult 
the  "original  sources",  where  possible,  in  order  to  verify  the  information  herein  pre- 
sented, and  to  bring  more  nearly  up  to  date  the  facts  as  to  recent  amendments  of  the 
more  important  provisions  of  existing  old  age  pension  laws  and  the  data  with  refer- 
ence to  the  operation  of  the  several  systems. 

Two  surveys  similar  to  the  present  one  and  covering  practically  the  same  field 
have  proved  particularly  helpful  in  this  connection.  One  of  these,  prepared  under 
the  direction  of  a  special  commission,  the  Massachusetts  Commission  on  Old  Age 
Pensions,  Annuities  and  Insurance,  formed  Part  III  of  the  report  of  that  commis- 
sion issued  in  1910;  the  other,  issued  as  late  as  March  1,  1915,  by  the  Industrial  Com- 
mission of  Wisconsin,  formed  Part  V  of  its  report  on  "Old  Age  Relief"  made  in  com- 
pUance  mth  the  provisions  of  Chapter  185  of  the  Laws  of  1913  of  Wisconsin.  While 
both  of  these  surveys  have  been  drawn  upon  in  the  preparation  of  the  present  descrip- 
tive account,  the  Wisconsin  survey,  because  of  the  more  recent  material  presented 
therein,  has  served  as  a  very  fruitful  source  of  information,  and,  in  fact,  subject  to 
verification  by  reference  to  original  sources,  a  considerable  portion  of  the  Wisconsin 
surv^ey,  with  certain  changes  in  diction  and  with  the  substitution  of  later  data  where 
available,  has  been  directly  quoted.  Also,  in  citing  from  other  sources,  the  phrase- 
ology has  for  purposes  of  acciu-acy  been  closely  followed.  References  to  the  principal 
sources  consulted  have  been  given  at  the  end  of  the  descriptive  matter  for  each 
country. 

In  nearly  all  of  the  leading  countries  statutory  provision  for  old  age  insurance 
or  pensions  has  been  made.  The  widely  varying  insurance  and  pension  sj'stems 
adopted  are  of  three  general  types:  Voluntary  insurance;  compulsory  (contributory) 
insurance;  and  non-contributory  pensions.  In  the  present  review  no  extended 
consideration  will  be  given  to  the  first  type,  that  of  voluntary  insurance,  because 
already  m  Massachusetts,  by  Chapter  561  of  the  Acts  of  1907,  provision  has  been 
made  for  the  establishment  of  a  system  of  savmgs  bank  life  insurance  and,  therefore, 
voluntary  old  age  insurance  is  not  deemed  to  be  a  subject  for  special  consideration 


160 

by  the  legislature  at  this  time.  Accordingly,  the  present  survey  is  confined  primarily 
to  a  consideration  of  existing  systems  of  compulsory  (contributory)  old  age  insur- 
ance and  of  non-contributory  old  age  pensions  which  have  been  established  by 
national  governments. 

No  general  system  of  old  age  insurance  or  pensions  has  been  established  by  the 
United  States  Government  nor  by  any  of  the  individual  States,  although  there  are  in 
operation  special  pension  sj'^stems  covering  certain  classes  of  public  employees,  such  as 
veterans,  retired  army  and  navy  officers,  State  employees  (in  Massachusetts),  and 
firemen,  policemen,  teachers  and  certain  other  municipal  employees;  but  these  systems 
hardly  come  within  the  scope  of  the  present  inquiry.  Thus  far,  in  the  United  States, 
the  estabUshment  of  pension  systems  covering  large  groups  of  the  population  has  been 
confined,  principally,  to  certain  important  railroad  systems  and  other  industrial 
corporations.  To  a  limited  extent,  the  operations  of  these  systems  have  pre-empted 
the  field,  and  the  establishment  of  any  general  national  or  State  system  of  old  age 
pensions  would  therefore  result  in  some  duphcation  as  respects  beneficiaries  were 
the  corporation  systems  still  to  continue  in  operation.  During  recent  years,  also, 
there  has  been  a  marked  increase  in  the  number  of  industrial  insurance  pohcies  issued 
in  this  country,  while  many  fraternal  organizations  and  several  important  national 
labor  organizations  have  established  pension  systems  for  the  benefit  of  their  super- 
annuated members.  Nevertheless,  it  is  true  that  no  very  considerable  portion  of 
the  population  of  this  country,  or  of  any  of  the  States,  is  yet  covered  by  any  system 
of  old  age  insurance  or  pensions. 

VOLUNTARY  OLD  AGE  INSURANCE. 

The  primary  purpose  in  establishing  State  systems  of  voluntary  old  age  insurance 
is  to  induce  wage-earners  to  provide  for  their  old  age  by  affording  them  opportunities 
to  secure,  at  low  cost,  old  age  insurance,  with  a  certainty  that  the  payment  of  pen- 
sions is  guaranteed  by  the  government.  Usually  the  system  adopted  provides  for 
the  estabhshment  or  designation  of  an  agency  which  shall  collect  the  premiums, 
care  for  the  reserve  fund,  and  make  pajmient  of  specified  benefits  or  pensions.  In 
most  instances,  the  expenses  of  administration  are  met  by  the  government  and  Hberal 
subsidies  are  granted,  thereby  reducing  the  cost  of  insurance  to  the  policy  holders. 
In  Belgium,  where  the  subsidies  in  1912  constituted  about  40  per  cent  of  the  benefits 
paid,  the  system  has  proved  more  popular  than  in  other  countries  where  less  liberal 
subsidies  are  granted,  and  indeed  it  appears  to  be  true  that  the  success  of  any  voluntary 
old  age  insurance  system  is  largely  determined  by  the  extent  to  which  it  has  been 
subsidized  by  the  government. 

In  Great  Britain,  Belgium,  France,  Italy,  Spain,  Canada,  and  Massachusetts, 
systems  of  voluntary  old  age  insurance  have  been  provided  for  by  law.  In  Great 
Britain,  a  system  of  postal  insurance  and  annuities  was  first  instituted  in  1S64,  and 
is  still  in  operation  although  it  has  been  somewhat  modified  by  later  legislation,  and 
has  in  a  measure  been  supplemented  by  the  more  recent  non-contributory  old  age 
pension  system  estabUshed  in  1908;  and  in  France,  in  addition  to  a  voluntary,  con- 
tributory, old  age  insurance  system  first  established  in  1850,  and  a  system  of  State 
aid  for  incapacitated  and  superannuated  workers  which  became  effective  in  1907,  a 
compulsory,  contributory  system  was  also  established  in  1910. 


161 

The  establishment  in  Great  Britain  and  France  of  other  pension  systems  which 
are  in  a  sense  supplementarj''  to  the  voluntary  systems  previously  established  indicates 
that,  notwithstanding  the  low  cost  at  which  old  age  insurance  has  been  furnished,  a 
considerable  portion  of  the  population  of  these  two  countries  has  failed  to  make  pro- 
vision for  old  age  by  this  means,  and  the  failure  of  many  other  countries  to  establish 
voluntary  old  age  pension  s.ystems  may  be  taken  as  an  unfavorable  commentary 
upon  the  success  of  such  systems  in  those  countries  where  they  have  been  adopted. 


COMPULSORY   OLD  AGE   INSURANCE. 

In  those  countries  where  old  age  insurance  is  made  compulsory  for  certain  classes 
of  the  population  (usually  wage-earners  and  persons  receiving  small  salaries)  it  has 
not  been  found  practicable  to  attempt  to  raise  more  than  50  per  cent  of  the  necessary 
funds  from  the  persons  insured,  and,  therefore,  except  for  the  provisions  of  law  maldng 
insurance  obhgatory,  these  several  systems  are  quite  analogous  to  the  voluntary' 
systems  under  which  large  subsidies  are  granted  by  the  government.  Even  in  Ger- 
many, where  the  compulsory  system  has  become  fully  operative,  the  insured  persons 
contribute  only  40  per  cent  of  the  funds  disbursed,  and  in  other  countries,  which  have 
adopted  compulsory  systems,  the  contributions  by  the  beneficiaries  rarely  exceed 
30  per  cent  of  the  total  disbursements.  The  value  of  the  contributory  principle,  there- 
fore, has  not  been  demonstrated  as  particularly  important  in  so  far  as  the  amount 
of  the  contributions  is  concerned,  and,  when  the  cost  of  collecting  the  contributions 
is  taken  into  consideration,  it  is  held  by  many  who  favor  a  non-contributory  system, 
that  the  latter  will  provide  equal  benefits  without  much  additional  cost  to  the  State 
over  the  former,  and  at  the  same  time  will  not  require  the  establishment  of  elaborate, 
administrative  machinery  for  the  collection  of  contributions,  and  for  the  recording 
of  facts  for  a  long  period  of  years,  with  reference  to  the  contributors.  If,  however, 
the  number  of  countries  which  have  adopted  a  compulsory,  contributory  system  of 
old  age  insurance  is  any  criterion,  then  such  a  system  appears  to  be  more  generally 
favored  than  either  a  voluntary  or  a  non-contributory  system.  The  list  of  such 
countries  includes  at  least  eleven  in  all,  namely:  Germany,  France,  Sweden,  Austro- 
Hungary,  Russia,  Italy,  Roumania,  Netherlands,  Greece,  Luxemburg,  and  Iceland. 

As  the  compulsory,  contributory  system  in  Germany  was  the  first  of  its  kind  estab- 
lished, and  is,  without  question,  the  most  comprehensive  and  most  widely  known,  it 
has  been  selected  as  the  first  to  be  discussed,  and  the  other  ten  countries  in  this  group 
will  be  considered  in  the  order  as  named  above. 

Germany.  The  old-age  and  invalidity  insurance  system,  established  in  Germany  in  1SS9, 
formed  a  part  of  a  comprehensive  system  of  social  insurance  which  also  included  sickness  in- 
surance, established  by  an  act  of  1883,  and  accident  insurance,  established  by  an  act  of  1S84. 
By  subsequent  legislation  the  system  was  extended  in  scope  and  perfected  in  detail,  and,  in 
1911,  the  several  acts  and  amendments  were  consolidated  into  a  single  code,  and  a  new  feature, 
that  of  "survivors'  insurance"  was  added.  Because  of  the  fact  that  old-age,  invalidity,  and 
survivors'  insurance  are  administered  as  a  single  system,  no  one  feature  of  this  system  can  be 
properly  discussed  without  some  reference  to  the  other  features,  nor  can  data  with  reference  to 
the  operation  of  the  old-age  insurance  feature  be  presented  separately,  so  as  to  enable  one  to 
make  comparisons  (which  may  not  be  misleading)  between  the  costs,  etc.,  of  old-age  insurance 
in  Germany  and  in  other  countries. 


162 


As  the  law  now  stands  (Code  of  1911)  insurance  is  obligatory  for  all  persons,  from  the  six- 
teenth to  the  seventieth  year  of  age,  whose  annual  earnings  do  not  exceed  2,000  marks  ($476) 
and  who  are  gainfully  employed  as: 

(1)  Workmen,  helpers,  journeymen,  apprentices  or  servants; 

(2)  Establishment  ofRcials  or  foremen; 

(3)  Clerlis  or  apprentices  in  commercial  establishments; 

(4)  Actors  or  musicians; 

(5)  Teachers  or  tutors; 

(6)  Masters  or  seamen  of  sea-going  or  inland  vessels. 

Certain  classes  of  public  employees,  otherwise  provided  for,  are  exempt.  Voluntary  in- 
surance is  open  to  employers  engaged  in  small  business  enterprises,  to  salaried  employees  who 
earn  not  more  than  3,000  marks  ($715)  per  year,  and  to  wives  who  were  insured  before  marriage, 
but  the  number  who  take  advantage  of  these  voluntary  provisions  is  negligible.  The  number 
of  persons  compulsorily  insured,  on  the  other  hand,  embraces  substantially  the  entire  wage- 
earning  population  of  the  Empire.  The  total  number  of  persons  insured  in  1914  was  11,798,922, 
or  about  17.9  per  cent  of  the  total  population  of  66,096,000. 

The  insurance  funds  are  derived  from  three  sources:  Insured  employees,  employers,  and 
the  Imperial  revenues.  The  employer  is  held  responsible  for  the  insurance  of  all  persons  em- 
ployed by  him  and  for  the  payment  of  the  premiums,  being  authorized  to  deduct  the  employees* 
share  of  the  premiums  from  his  wages.  He  receipts  for  the  employees*  payments  by  affixing 
government  insurance  stamps  to  the  employees*  receipt  cards.  The  Imperial  Government  con- 
tributes a  fixed  sum  each  year  toward  every  pension  and  also  bears  the  expenses  of  administra- 
tion and  of  the  payment  of  pensions  through  the  post-offices. 

For  administrative  purposes  the  insured  employees  are  grouped  in  five  wage  classes,  de- 
termined by  total  annual  earnings,  and  their  contributions  are  made  weekly  in  accordance  with 
the  following  graded  scale: 


Class. 


Annual  Earnings. 


Weekly  Contribution. 


I.     . 
11. 
Ill, 
IV, 
V.   . 


Less  than  350  marks  ($83.37). 
350  to  550  marks  ($131.01). 
550  to  850  marks  ($202.47). 
850  to  1,150  marks  ($273.93). 
More  than  1,150  marks  ($273.93). 


16  pfennige 

$0,038). 

24  pfennige 

.057). 

32  pfennige 

.076). 

40  pfennige 

.095). 

48  pfennige 

.114). 

In  1912  the  total  receipts  from  all  sources  was  399,938,100  marks  ($95,265,255),  of  which 
amount  34.2  per  cent  was  contributed  by  employers,  34.2  per  cent  by  employees,  13.8  per  cent 
by  the  Imperial  Government,  and  17.8  per  cent  was  in  the  nature  of  interest  on  accumulated 
reserves  and  miscellaneous  receipts. 

The  benefits  comprise :  (1)  Old-age  pensions;  (2)  Invalidity  pensions;  (3)  Sickness  pensions; 
(4)  Widows'  and  orphans'  pensions,  and  (5)  Medical  care. 

The  old-age  pension  is  payable  from  the  seventieth  birthday  to  a  person  who  has  made  at 
least  1,200  weekly  contributions,  but  payment  of  contributions  may  be  omitted  without  loss  of 
rights  during  sickness,  accidental  disability,  or  military  service.  The  required  term  of  insurance 
is  so  long  (over  23  years)  that  no  person  could  have  obtained  a  pension  before  1914.  To  meet 
this  objection  the  required  term  was  reduced  by  forty  weeks  for  each  year  of  age  over  40  at  the 
time  the  act  became  operative.  Thus  a  man  who  was  already  70  years  of  age  in  1891  could 
claim  an  immediate  pension. 

An  old-age  pension  is  made  up  of  two  parts:  (1)  The  Imperial  subsidy  of  50  marks  ($11.91), 
which  is  the  same  for  all  pensions,  and  (2)  The  insurance  annuity,  which  is  60  marks  ($14.29) 
for  the  first  wage  class  and  increases  by  steps  of  30  marks  ($7.15)  for  each  succeeding  class. 
The  entire  pension  thus  ranges  from  110  marks  ($26.20)  per  year  in  the  lowest  to  230  marks 


163 

($54.79)  in  the  highest  class.  If  a  pensioner  has  been  a  member  of  different  wage  classes  at 
different  times,  the  insurance  annuity  is  prorated.  Whatever  the  amount,  pensions  are  paid 
monthly,  in  advance. 

The  total  number  of  old-age  pensions  in  effect  on  January  1,  1914,  was  87,261.  The 
number  of  old-age  pensions  has  decreased  from  year  to  year  due  to  the  increased  number  of 
invalidity  pensions  held  by  persons  70  years  of  age  or  over.  By  way  of  explanation  it  should 
be  stated  in  this  connection  that  when  an  insured  person  who  is  receiving  an  invalidity  pension 
reaches  the  age  of  70,  he  has  the  option  of  choosing  an  invalidity  or  an  old-age  pension,  and 
the  former  is  usually  chosen  because,  ordinarily,  it  is  of  a  larger  amount. 

The  average  amount  of  all  old-age  pensions  granted  in  1914  was  167.99  marks  ($40.02), 
or  about  $3.33  per  month.  The  average  has  slowly  risen,  having  been  124  marks  ($29.54)  in 
1891,  145.54  marks  ($34.67)  in  1900,  and  166.15  marks  ($39.58)  in  1908.  The  increase  is  at- 
tributable to  two  causes:  (1)  Wages  have  been  rising  and  the  proportion  of  persons  in  the 
lower  wage  classes  has  consequently  decreased,  and  (2)  pensions  granted  during  the  "tran- 
sitional period"  (1891  to  1914)  were  necessarily  kept  low  because  of  the  small  number  of  con- 
tributions which  had  been  paid  in  by  the  pensioners.  Each  year  up  to  1914  the  number  of 
contributions  increased  and  consequently  the  sums  granted  as  pensions  were  automatically 
increased. 

The  pension  age  (70  years)  is  so  high  that  very  few  live  to  enjoy  the  old-age  benefit,  con- 
sequently compulsory  old-age  insurance  would  naturally  be  unpopular  were  not  this  objection 
met  by  the  granting  of  an  invalidity  pension  in  case  of  permanent  disability  before  the  pension 
age.  Because  of  the  interdependence  of  old-age  and  invalidity  insurance,  the  latter  should  be 
also  discussed  in  this  connection. 

Invalidity  is  defined  as  inability,  through  accident  or  disease,  to  earn  one-third  of  the 
normal  wages  earned  in  the  same  occupation  and  locality.  Accidental  injury  sustained  in  the 
course  of  employment  is  excluded,  since  incapacity  from  that  cause  is  otherwise  provided  for. 
An  invalidity  pension  can  be  drawn  only  after  200  weeks'  insurance  and  after  the  paj'ment  of 
at  least  100  weekly  contributions. 

An  invalidity  pension  consists  of: 

(o)  The  Imperial  subsidy  of  50  marks  (S11.91); 

(6)  A  basic  insurance  annuity  of  60  marks  ($14.29)  for  the  first  class,  increasing  by  10  marks  (S2.38)  for 
each  succeeding  class;  and 

(c)  A  supplementary  amount  equal  to  the  number  of  weekly  contributions  which  the  pensioner  has  paid, 
multiplied  by  3  pf.  ($.007)  for  the  first  class,  6  pf.  ($.014)  for  the  second,  8  pf.  ($.019)  for  the  third,  10  pf. 
(8.024)  for  the  fourth,  and  12  pf.  (S.029)  for  the  fifth  class.  Under  this  arrangement  an  invalidity  pension  will 
be  greater  or  less  than  an  old-age  pension,  according  to  the  length  of  the  insurance  period  prior  to  invalidity. 
Since  1906,  however,  invalidity  pensions  have  averaged  higher  than  old-age  pensions. 

The  Code  of  1911  provides  a  further  allowance  of  10  per  cent  of  the  invalidity  pension  for 
each  child  under  16,  but  such  allowance  is  limited  to  50  per  cent  in  all.  Of  130,609  invalidity 
pensions  granted  in  1914,  27,112  carried  such  allowances. 

The  smallest  invalidity  pension  is  116  marks  ($27.63)  yearly.  The  average  of  such  pensions 
in  1914  was  200.81  marks  ($47.83),  as  compared  with  an  average  of  167.99  marks  ($40.02)  for 
old-age  pensions.  The  average  is  increasing  for  the  same  reasons  which  operate  in  the  case  of 
old-age  pensions. 

The  number  of  invalidity  pensions  in  force  at  the  close  of  1914  was  998,339,  as  compared 
with  only  87,261  old-age  pensions.  The  number  has  risen  steadily  from  31  in  1891  to  405,335 
in  1900,  and  868,086  in  1908.  As  already  explained,  this  increase  has  been  accompanied  by  a 
decrease  in  the  number  of  old-age  pensions. 

The  aggregate  payments  on  account  of  invalidity  pensions  in  1912  was  158,715,621  marks 
(837,806,061)  as  compared  with  an  aggregate  of  14,061,878  marks  ($3,349,539)  for  old-age 
pensions.  The  relative  importance  of  invalidity  pensions  has  increased  and  that  of  old-age 
pensions  has  correspondingly  decreased  year  by  year.  The  aggregate  expenditures  for  these 
two  benefits  stood  as  1  to  2  in  1894,  as  2  to  1  in  1900,  as  8  to  1  in  1908  and  as  11  to  1  in  1912. 
In  fact,  the  greater  part  of  the  invalidity  pensions  are  in  reality  old-age  pensions.  Out  of  103,200 
invalidity  and  old-age  pensions  granted  during  1912  to  persons  of  50  years  of  age  or  over,  only 


164 

28,702,  or  27.8  per  cent  -were  to  persons  of  70  years  of  age  or  over  -while  50,677,  or  49.1  per  cent 
were  to  persons  under  65.  These  figures  indicate  that  incapacity  from  old  age  more  often  begins 
before  65  than  after  70  years  of  age. 

Ordinary  cases  of  sickness  are  cared  for  at  the  expense  of  the  sickness  insurance  funds. 
But  if  disability  continues  beyond  the  twenty-sixth  week,  a  temporary  invalidity  or  "sickness" 
pension  (Krankenrente)  is  granted.  Sickness  pensions  are  identical  in  amount  with  invalidity 
pensions,  and  the  definition  of  disability  is  the  same  —  inability  to  earn  one-third  of  normal 
wages.  The  number  of  such  pensions  in  force  January  1,  1914,  was  16,555;  the  entire  cost 
during  1912  was  3,201,735  marks  (S762,653)  and  the  average  pension  was  192.3  marks  (S45.81). 

Under  the  law  of  1891  the  only  death  benefit  was  the  return  of  contributions  to  the  de- 
pendents of  an  insured  person  who  died  before  receiving  a  pension.  This  left,  not  only  orphans, 
but  aged  and  invalid  widows  without  provision.  This  defect  in  the  system  was  remedied,  to 
some  extent,  by  the  widows'  and  orphans'  pensions  established  by  the  Code  of  1911.  A  pension 
is  payable  only  to  an  invalid  widow,  but  "widow's  money,"  equal  to  one  year's  pension,  is  paid 
in  any  case  upon  the  death  of  the  husband.  The  widow's  pension  consists  of  the  Imperial  sub- 
sidy of  50  marks  ($11.91)  and  of  three-tenths  of  the  insurance  annuity  to  which  her  husband 
would  have  been  entitled  at  the  time  of  death.  Aged  women  are,  therefore,  not  as  well  pro\aded 
for  as  aged  men,  in  that  the  pension  is  only  about  one-half  as  much  as  that  granted  in  case  of 
actual  invalidity.    There  is  no  "old-age"  pension,  as  such,  for  women. 

The  widow's  pension  pro\-isions  became  operative  in  July,  1912.  In  1914  pensions  were 
granted  to  9,834  widows,  the  average  amount  having  been  78.85  marks  (S18.78)  per  annum,  and 
30,223  orphans'  pensions  were  granted,  the  average  amount  having  been  78.12  marks  ($18.61;. 

Whenever  it  is  believed  that  a  case  of  invalidity  can  be  benefited,  or  impending  invalidity 
prevented,  a  course  of  treatment  may  be  given,  the  expenditure  being  charged  to  the  invalidity 
and  old-age  fund.  Preventive  treatment,  in  fact,  has  become  one  of  the  most  beneficent  activities 
of  this  branch  of  social  insurance.  Sixty-five  or  more  sanatoria  are  maintained,  at  which  about 
70,000  persons  are  treated  annually.  The  great  cause  of  premature  invalidity  is  tuberculosis, 
and  nearly  60  per  cent  of  all  the  cases  treated  are  tubercular.  The  efficacy  of  the  treatment 
is  indicated  by  the  fact  that  more  than  80  per  cent  of  the  patients  are  discharged  with  "  dis- 
ability removed." 

The  expenditure  for  invalidity  pensions  increased  from  7,250,000  marks  ($1,726,950)  in 
1912  to  over  9,000,000  marks  ($2,143,800)  in  1914,  while  the  cost  of  sickness  pensions  rose  from 
24,000  marks  ($5,717)  in  1912  to  about  360,000  marks  ($85,752)  in  1914.  The  decrease  in  ex- 
penditures on  account  of  old-age  pensions  was,  on  the  other  hand,  400,000  marks  ($95,280). 

Invalidity  and  old-age  insurance  is  administered  by  forty-one  territorial  and  special  "in- 
stitutes" under  the  general  supervision  of  the  Imperial  Insurance  office.  The  total  cost  of  ad- 
ministration in  1914  was  24,156,658  marks  ($5,754,116).  The  cost  per  1,000  marks  ($238.20) 
of  total  expenses  in  1914  was  81  marks  ($19.29)  as  against  83  marks  ($19.77)  for  the  years  1912 
and  1913.  The  Central  Office,  a  branch  of  the  Imperial  Insurance  Institute,  is  administered 
by  highly  trained  experts.  The  published  reports  are,  therefore,  the  most  comprehensive  of 
their  kind  anywhere  issued. 

The  most  striking  feature  of  old-age  relief  in  Germany  is  its  correlation  with  a  comprehensive 
scheme  of  workingmen's  insurance.  Accidental  injury  in  the  course  of  employment,  sickness, 
child-birth,  permanent  invalidity,  premature  death  and  old  age,  all  are  provided  for  by  com- 
pulsory insurance.  Especially  significant,  in  the  present  connection,  is  the  interdependence 
of  old  age  with  invalidity  and  survivors'  insurance.  When  it  is  understood  that  60  per  cent 
of  the  insured  persons  die  before  attaining  the  seventieth  year,  and  that  of  all  old-age  and  in- 
validity pensioners,  88  per  cent  are  under  70  years  of  age  and  54  per  cent  are  under  60  upon  first 
receipt  of  pensions,  it  is  clear  that  the  old-age  pensions  alone  would  afford  a  very  unsatisfactory 
degree  of  protection,  nevertheless  they  do  constitute  relatively  large  returns  upon  the  invest- 
ment made  in  the  form  of  premiums  paid  by  those  insured. 

Whatever  may  be  the  beneficial  effects  of  social  insurance  in  the  case  of  indi\-idual 
pensioners,  it  cannot  be  denied  that  this  system  has  resulted  in  improved  standards  of  health 
and  work  of  the  general  wage-earning  population,  and  to  it  has  been  due  in  some  large  measure 
the  remarkable  industrial  development  of  Germany  in  recent  years. 

Sources.  —  Annual  Report  of  the  U.  S.  Commissioner  of  Labor,  1909,  Vol.  I,  pp.  1354-1444;  German 
Workingmen's  Insurance  Code,  Bulletin  No.  96  of  the  U.  S.  Bureau  of  Labor;  Amtliche  Nachrichten  des 


165 

Reichsversicherungsamts  (Report  of  the  Imperial  Insurance  Office)  1913;  Statistisches  Jahrbuch  f(lr  das  deutsche 
Reich  (Statistical  Year  Book  of  the  German  Empire)  1912  and  1914;  Monatsbliitter  fiir  Arbeiterversicherung, 
1912,  cited  in  Reichsarbeitsblatt,  Bd.  XI,  no.  2,  Feb.  1913  and  Roichsarbeitsblatt,  Bd.  XIV,  no.  3,  Mar.  1916. 

France.  The  compulsorj''  old-age  insurance  law  of  1910  prescribes  insurance  for  practi- 
cally all  worlving  people  "of  whatever  nationality"  who  earn  less  than  3,000  francs  ($579)  per 
annum  (including  those  State  employees  who  do  not  come  under  the  regulations  of  civil  and 
military  pensions). 

The  receipt  of  a  pension  is  conditioned  upon  the  regular  payment  of  premiums  for  30  years, 
except  that  the  number  of  payments  is  reduced  to  28  for  all  men  who  have  performed  at  least 
two  years  military  servace;  and  for  women  the  birth  of  each  child  is  reckoned  as  one  year's 
insurance,  which  may  be  deducted  from  the  prescribed  30  payments.  There  are  three  groups 
of  premiums  depending  upon  age  or  sex,  and  corresponding  to  three  wage  groups  for  insurable 
wage-earners  as  follows:  men,  9  francs  ($1.74)  per  year;  women,  6  francs  (SI. 16)  per  year; 
minors  under  18  years  of  age,  4.5  francs  ($0.87)  per  year.  Responsibility  for  payments  of  pre- 
miums rests  with  the  employer  who  must  duplicate  his  employees'  contributions,  which  are 
receipted  for  by  means  of  stamps  affixed  to  cards. 

The  original  State  subsidy  of  60  francs  ($11.58)  was  increased  to  100  francs  ($19.30)  by 
an  amendment  in  1912.  This  annual  grant  is  paid  in  those  cases  where  the  30  prescribed  sub- 
scriptions have  been  made,  and  is  increased  one-tenth  for  every  insured  person  of  either  sex  who 
shall  have  brought  up  at  least  three  children  to  the  age  of  16.  If  premiums  are  paid  less  than 
30  but  more  than  15  years,  the  State  subsidy  is  calculated  on  a  basis  of  3.33  francs  ($0.64)  for 
each  j'ear  of  complete  pajTnents.  If  less  than  15  annual  payments  were  made,  the  State  allows 
no  pension  subsidy  whatsoever. 

The  pensionable  age  is  65,  but  pensions  may  be  drawn  at  55  years  of  age,  subject  to  a  pro- 
portionate reduction  both  in  amount  of  pension  and  of  State  grant.  In  case  of  death,  if  f  of 
contributions  were  paid  in  and  no  pension  had  been  received,  children  of  the  deceased  may 
receive  50  francs  ($9.65)  a  month  for  from  4  to  6  months;  in  case  there  are  no  children,  the 
widow  may  receive  this  amount  for  3  months;  in  case  of  divorce,  when  the  exclusive  fault  of 
the  husband  was  the  ground  for  divorce,  the  wife  may  receive  this  sum. 

All  persons  who,  in  1910,  were  already  35  years  of  age  must  insure.  If  between  35  and 
40  years  old,  the  State  grant  of  60  francs  ($11.58)  is  not  diminished;  if  46  years  old,  it  is  raised 
to  62  francs  ($11.97).  The  grant  increases  2  francs  ($0.39)  thereafter  for  every  additional  year 
of  age  at  which  insurance  begins.  In  accordance  with  provisions  of  the  Act  of  1905  persons 
over  65  years  of  age  receive  such  a  pension,  exceeding  100  francs  ($19.30)  but  less  than  240 
francs  ($46.32),  as  their  needs  may  require.  The  Old  Age  Pension  Act  of  1907  includes  in- 
validity, and  the  maximum  invalidity  pension  is  360  francs  ($69.48)  per  year. 

In  addition  to  compulsory  insurance,  a  system  of  optional  insurance  has  been  extended 
to  private  persons  receiving  small  income,  employers  engaged  in  small  enterprises,  peasant 
proprietors,  independent  workingmen,  and  to  wage-earners  whose  annual  income  is  more  than 
3,000  francs  ($579)  but  less  than  5,000  francs  ($965).  The  voluntary  annual  contribution 
rate  is  from  9  ($1.74)  to  18  ($3.47)  francs. 

The  estimated  number  of  persons  to  be  insured  under  this  Act  is  from  10  to  12  millions. 
The  number  of  persons  insured  in  1913  was  7,854,132  and  the  income  from  the  sale  of  stamps 
was  45,525,540  francs  ($8,786,429). 

On  June  30,  1910,  the  total  number  of  persons  pensioned  under  this  Act  was  569,456,  and 
on  September  30,  1912,  this  total  had  increased  to  640,532.  It  is  estimated  that  about  one- 
third  of  the  total  number  of  French  working  men  were  actually  insured  18  months  after  this 
law  became  effective.  The  Act  secures  substantial  incomes  for  many  who  could  not  be  induced 
voluntarily  to  provide  for  their  old  age  through  private  institutions,  and  it  accomplishes  this 
without  imating  thriftlessness  in  the  decade  before  receipt  of  a  pension.  Putting  the  pensionable 
age  at  65  instead  of  at  70  brings  a  much  heavier  charge  upon  the  French  Treasury. 

The  amounts  paid  as  old-age  pensions  are  slightly  higher  than  those  paid  in  Germany, 
but  under  the  German  system  certain  additional  benefits  accrue  to  the  insured. 

Sources.  —  Journal  Officiel,  April  6,  1910,  cited  by  R.  F.  Foerster  in  Article  entitled  "The  French  Old 
Age  Insurance  Law  of  1910,"  in  Quarterly  Journal  of  Economics,  v.  24,  no.  4,  Aug.  1910;  I.  M.  Rubinow, 
Social  Insurance,  1913;  France  Ministry  of  Labor,  Old  Age  Pensions,  Librairie  Berger-Levrault,  1915. 


166 

Sweden.  The  Swedish  old-age  insurance  law  of  1913  is  more  comprehensive  than  that 
of  either  Germany  or  France.  The  French  and  German  systems  are  practically  confined  to 
persons  gainfully  employed,  while  the  Swedish  law  applies  to  the  whole  adult  population,  in- 
cluding married  women. 

Every  Swedish  man  or  woman  from  the  sixteenth  to  the  sixty-sixth  year,  inclusive,  pays 
an  annual  tax,  or  premium,  of  3  crowns  (SO. 80).  For  incomes  over  500  crowns  ($134)  a  sur- 
tax is  imposed,  ranging  up  to  10  crowns  ($2.68)  for  incomes  over  1,200  crowns  ($322)  per  annum. 
Additional  voluntary  payments  may  be  made,  not  to  exceed  30  crowns  ($8.04)  per  year  in  all. 
Members  (and  their  wives)  of  the  military,  naval,  and  civil  service,  who  are  otherwise  provided 
for,  and  permanently  disabled  persons,  are  exempt. 

If  a  pensioner  receives  poor  relief,  then  his  pension  must  be  paid  in  part  or  in  whole  to  the 
public  charity  organization  in  order  to  reimburse  it  to  the  amount  of  the  relief  given  to  such 
pensioner.  If  institutional  care  is  given,  the  institution  or  hospital  may  claim  the  pension  to 
reimburse  itself  to  the  amount  charged  for  such  care  of  a  pensioner.  If  a  pensioner  is  a  con- 
vict, or  imprisoned  for  more  than  one  month,  his  pension  is  withheld  during  that  time;  his  de- 
pendents may,  however,  claim  it  for  their  support.  Habitual  drunkenness  and  voluntary  idle- 
ness are  disqualifications.  Moreover,  a  pension  reverts  to  the  general  insurance  fund  if  it  is  not 
claimed  within  one  year  after  it  becomes  due. 

An  old-age  pension  is  payable,  without  respect  to  incapacity,  from  the  sixty-seventh  year. 
An  invalidity  pension  is  payable  at  any  age  in  case  of  permanent  disability.  The  annual  amount 
of  the  pension  is  30  per  cent  for  men,  and  24  per  cent  for  women,  of  the  whole  amount  that  has 
been  paid  in  by  the  beneficiary.  In  addition,  the  government  grants  a  subsidy  of  150  crowns 
($40.20)  per  annum  for  men  and  140  crowns  ($37.52)  for  women  whose  whole  annual  income 
does  not  exceed  50  crowns  ($13.40).  This  subsidy  is  reduced  by  one-half  of  the  pensioner's 
income  over  50  crowns  ($13.40),  and  ceases  altogether  when  the  income  reaches  300  crowns 
($80.40)  for  a  man  or  280  crowns  ($75.04)  for  a  woman. 

It  will  be  seen  that  for  the  lower  wage  classes  the  government  subsidy  will  be  the  chief 
component  of  the  pension.  For  a  generation  to  come,  the  government  subsidy  will  be  nearly 
the  sole  constituent  of  all  pensions.  At  least  thirty  years  must  elapse  before  the  insurance 
annuity  will  amount  to  any  considerable  sum. 

In  1914  the  number  of  pensions  granted  was  33,138  and  the  total  amount  paid  was 
1,875,457  crowns  ($502,622),  or  56.6  crowns  ($15.17)  per  capita.  Records  further  show  that  pen- 
sions were  granted  to  10,565  men,  totaling  623,120  crowns  ($166,996),  or  58.98  crowns  ($15.81)  per 
capita;  and  to  22,573  women  to  the  amount  of  1,252,336  crowns  ($335,626),  or  55.48  crowns 
($14.87)  per  capita.  The  total  number  of  persons  insured  under  the  Act  in  1914  was  3,225,700. 
They  contributed  a  total  of  14,571,000  crowns  ($3,905,028).  The  number  of  voluntary  cases 
insured  in  1914  was  628. 

Sources.  —  Svensk  Farfattningssamling,  nr.  120,  Lag  om  allman  pension  forsakring  (Universal  Old  Age 
Pension  Law)  June  30,  1913;  Reichsarbeitsblatt,  1913  and  1916. 

Austro-Hungary.  The  Austro-Hungary  compulsory  old-age  insurance  law  of  1906, 
in  force  since  January  1,  1909,  is  restricted  to  salaried  employees,  and  does  not,  therefore,  make 
general  provision  for  the  aged. 

In  the  Austrian  mining  industry  operated  by  the  State,  a  compulsory  old-age  pension  fund 
was  established  as  early  as  1854,  and  the  State,  as  employer,  pays  one-half  of  the  contributions. 

Sources.  —  I.  M.  Rubinow,  Social  Insurance,  New  York,  1913;  Statistisches  Jahrbuch  fiir  das  deutsche 
Reich,  1914. 

Russia.  In  Russia  no  general  provision  is  made  for  invalidity  and  old-age  insurance, 
but  in  1881  an  Act  was  passed  which  provided  for  compulsory  old-age  insurance  of  employees 
in  the  government  mines.  Old-age  insurance  systems,  established  as  early  as  1858  by  private 
railroads,  were  made  compulsory  in  1888  for  such  railroads,  and  in  1894  for  State  railroads. 

In  1914  the  government  paid  117,994  roubles  ($60,694)  for  pensions,  which  is  an  increase 
of  1,824  roubles  ($939)  over  the  amount  for  the  preceding  year. 


167 

Sources.  —  Monatsblatter  fur  Arbeiterversicherung,  1913,  cited  in  Reichsarbeitablatt,  Bd.  XI,  no.  8, 
August,  1913;  I.  M.  Rubinow,  Social  Insurance,  1913;  The  Times'  Book  of  Russia,  1916. 

Italy.  The  Italian  National  Institution  for  the  Insurance  of  Workers  against  Invalidity 
and  Old  Age  dates  from  1898  and  is  modeled  rather  closely  upon  the  French  National  Retire- 
ment Fund.  In  1899,  a  law  was  passed  providing  that  employees  in  the  tobacco  industry  should 
be  insured  in  this  Institution.  In  1904,  a  bill  for  uniform  insurance  was  introduced  and  became 
law,  and  in  1905,  this  law  was  extended  to  employees  of  government  engraving  and  printing 
offices,  and  in  the  same  year  to  employees  of  the  government  salt  works.  In  1908  the  com- 
pulsory pension  system  was  extended  to  include  government  railway  employees;  in  1910  to 
include  persons  engaged  in  the  shipping  industry,  and  in  1913  to  include  sailors. 

The  pensionable  age  is  60  years  for  men,  and  55  years  for  women.  The  monthly  contribu- 
tion from  the  wage  of  an  employee  is  2  lire  ($0.39)  for  men,  1  lira  ($0,193)  for  women.  The 
smallest  pension  granted  is  480  lire  ($92.64)  for  men,  300  lire  ($57.90)  for  women.  The  total 
annual  subsidy  of  the  State  and  the  Institution  given  in  every  case  is  34  lire  ($6.56)  for  men, 
22  lire  ($4.25)  for  women. 

Sources.  —  Report  U.  S.  Commissioner  of  Labor,  Washington,  1909,  v.  II;  I.  M.  Rubinow,  Social  Insur- 
ance, 1913;   Statistisches  Jahrbuch  fiir  das  deutsche  Reich,  1914. 

Roumania.  In  1912,  compulsory  old-age  and  invalidity  insurance  was  established  by 
law,  but  there  is  no  evidence  at  hand  to  the  effect  that  the  system  has  yet  become  operative. 
The  act  appears  to  be  modelled  upon  both  the  German  and  the  French  acts.  Under  this  act, 
invalidity  is  defined  as  inability  to  earn  one-third  of  normal  wages,  and  in  this  respect  the  act 
follows  the  German  precedent.  The  pensionable  age  is  65  years.  The  French  method  of  uni- 
form weekly  contributions  for  all  classes  of  insured  persons  was  adopted.  The  weekly  rate  is 
45  bani  ($0.87)  for  the  first  10  years  from  the  date  the  act  becomes  effective,  and  employer, 
employee,  and  the  State  contribute  equally.  The  employer  is  responsible  for  the  worker's  share, 
which  he  may  deduct  from  the  wages.  The  normal  old-age  pension  granted  is  150  lei  ($28.95), 
and  in  order  to  receive  it,  contributions  must  have  been  paid  altogether  for  at  least  1,200  weeks. 
The  invalidity  pension  is  increased  by  10  bani  ($0,193)  for  every  weekly  contribution  exceeding 
200  contributions.  It  is  paid  to  any  insured  person  after  he  has  been  ill  for  16  consecutive 
weeks.     The  number  of  persons  insurable  in  1913  has  been  estimated  at  150,000. 

■Sources.  —  I.  M.  Rubinow,  Social  Insurance,  1913;  Statistisches  Jahrbuch  fiir  das  deutsche  Reich,  1914; 
Law  of  1912,  cited  in  Bulletin,  International  Labour  Office,  1913,  v.  VIII,  No.  2. 

Netherlands.  An  act  passed  in  1913  provided  that  old-age  and  invalidity  insurance 
should  be  compulsory  for  all  "workers"  (with  certain  exceptions)  earning  less  than  1,200  florins 
($482)  per  year.  Those  insured  under  the  act  are  entitled  to  a  pension  on  attaining  the  age 
of  70,  or  earlier,  if  incapacitated,  incapacity  being  defined  as  inability  to  earn  one-third  of  normal 
wage.  Surviving  children  of  insured  persons  also  receive  annuities  until  they  reach  the  age 
of  13  years.  In  order  to  be  eligible,  a  pensioner  must  be  needy  and  deserving,  and  must  not 
have  received  public  charity.  Persons  convicted  of  crimes,  drunkards,  and  those  who  lead  a 
dissolute  life  are  disqualified.  Continuous  residence  of  at  least  20  years  and  continuous  citizen- 
ship of  at  least  5  years  are  necessary  qualifications. 

Insured  persons  are  grouped  in  five  wage  classes,  determined  by  total  annual  earnings  as 
follows: 

First  class less  than  240  florins  (S96.48) 

Second  class, 240  to  400  florins  ($160.80) 

Third  class 400  to  000  florins  (S241.20) 

Fourth  class GOO  to  900  florins  (S361.80) 

Fifth  class,  ............  900  florins  and  over 

Military  conscripts  serving  with  the  colors  are  assigned  to  the  second  class  and  their  con- 
tributions are  paid  by  the  State.  The  weekly  contributions  for  the  respective  classes  are  20 
cent.  ($0.08);    24  cent.  ($0,096);    32  cent.  ($0,129);    40  cent.  ($0,161);    and  48  cent.  ($0,193). 


168 

Contributions  are  payable  generally  by  the  employers  who  may  deduct  from  the  wages  of  each 
emploj'ee  a  portion  of  the  contribution  paid  in  his  behalf,  the  proportion  varying  according  to 
the  wage  class  of  the  employee.  Contributions  are  paid  by  means  of  stamps  affixed  to  cards, 
or  in  cash  to  the  Local  Labor  Council. 

The  amount  of  the  pension,  whether  on  account  of  old  age  or  invalidity,  is  computed  as 
follows:  a  sum  described  as  the  "basis"  of  the  pension  is  first  determined  by  multiplying  the 
aggregate  amount  of  the  contributions  paid  by  325;  the  product  is  then  divided  by  the  number 
of  weeks  during  which  the  insurance  has  continued.  The  number  of  weeks  during  which  invalid 
pension  has  been  paid,  and  the  premiums  paid  in  respect  of  such  weeks,  are  not  taken  into  ac- 
count in  making  such  computation.  The  "basis"  of  the  pension  is  then  increased  by  a  sum 
equal  to  14  per  cent  of  the  total  amount  of  premiums  paid,  but  this  sum  must  in  no  case  be  less 
than  a  fifth  of  the  "basis."  In  accordance  with  this  formula  an  insured  person  who  has  paid 
48  weekly  contributions  each  year  from  the  age  of  20  to  the  age  of  70,  and  whose  wages  were 
So  a  week  up  to  the  age  of  25,  S6  a  week  up  to  the  age  of  30,  and  $7  a  week  thereafter  would 
be  entitled  to  a  pension  of  about  S2.30  a  week  at  the  age  of  70.  In  the  event  of  his  becoming 
incapacitated  at  the  age  of  30,  he  would  from  that  time  onward  receive  about  $1.25  a  week. 
Should  such  incapacity  not  occur  until  his  40th  year,  he  would  receive  about  $1.50  a  week,  and 
if  it  did  not  occur  until  his  50th  year,  he  would  receive  about  $1.80  a  week. 

Medical  or  surgical  treatment  at  home  or  in  a  hospital  may  be  provided  when  it  is  believed 
that  an  insured  person  might,  without  such  treatment,  become  permanently  incapacitated. 
If  such  person  has  150  weekly  contributions  to  his  credit,  provision  may  be  made  for  the  pay- 
ment on  behalf  of  his  children  under  13  of  two-thirds  of  the  estimated  amount  of  the  invalidity 
pension  to  which  he  may  be  entitled. 

Provision  is  also  made  for  the  granting  of  invalidity  and  old-age  pensions.  To  persons 
who  voluntarily  insure,  contributions  of  two  florins  ($0.80)  may  be  paid  whenever  the  insured 
desires,  but  no  more  than  80  contributions  are  to  be  taken  into  account  for  any  year.  The 
amount  of  the  pension  is  to  be  1.5  per  cent  of  each  contribution  for  each  half-year  which  shall 
have  elapsed  between  the  dates  of  the  payment  of  the  contribution,  and  the  receipt  of  the  pension, 
excluding,  however,  years  during  the  major  portion  of  which  invalidity  pension  was  received. 

An  annual  State  subsidy  of  10,000,000  florins  ($4,020,000)  is  to  be  paid  for  a  period  of 
75  years.  Before  1914  the  government  paid  the  districts  a  subsidy  of  50  florins  ($20.10)  per 
pension.  The  estimated  cost  for  1914  for  invalidity  pensions  was  9,500,000  florins  (.$3,819,000), 
and  for  old-age  pensions  4,750,000  florins  ($1,909,500),  a  total  of  14,250,000  florins  ($5,728,500) 
for  all  pensions  paid  in  1914.  Pensions  are  paid  through  the  State  Insurance  Bank  and  Local 
Labor  Councils. 

Sources.  —  Maandschrift  van  het  Centraal  Bureau  voor  de  Statistiek,  1914;  British  Board  of  Trade 
Labour  Gazette,  July,  1914;  Staatsblad,  van  het  Koninkrijk  der  Nederlanden,  1913,  Noa.  205,  272,  281. 

Greece.  A  compulsory  invalidity  and  old-age  insurance  act  was  passed  in  1907.  It  is 
restricted  to  Greek  sailors  and  the  cost  is  borne  in  equal  shares  by  the  insured,  the  employer, 
and  the  government.     No  statistics  as  to  the  operation  of  this  act  are  available. 

Source.  —  Statistiaches  Jahrbuch  fiir  das  deutsche  Reich,  1914. 

Luxemburg.  Compulsory  invalidity  and  old-age  insurance  laws  were  passed  in  1911  and 
1912.  All  persons  having  an  annual  income  of  not  less  than  3,000  marks  ($715)  must  insure. 
The  pensionable  age  is  68  years.  Invalidity  is  defined  as  inability  to  earn  two-thirds  of  normal 
wage.  Institutional  care  to  prevent  permanent  invalidity  and  support  of  dependents  may  be 
granted.  In  the  event  of  death  before  a  pension  becomes  due,  death  benefits  may  be  paid 
to  the  widow  or  the  children  of  a  pensioner.  The  contributions  are  at  the  rate  of  2.1  per  cent 
of  the  wage  earned,  and  are  paid  in  equal  shares  by  the  insured  and  the  employer.  The  State 
pays  a  subsidy  of  48  marks  ($11.43)  for  every  insured  man  and  38.40  marks  ($9.15)  for  every 
insured  woman.  Compulsory  insurance  may  be  augmented  by  voluntary  insurance  for  persons 
receiving  an  annual  income  not  exceeding  3,600  marks  ($858). 

Source.  —  Statistiaches  Jahrbuch  fiir  das  deutsche  Reich,  1914. 


xi! 


169 

Iceland.  Under  a  law  dated  July  11,  1890,  a  compulsory  system  of  old-age  and  invalidity 
insurance  was  established.  All  servants  between  the  ages  of  20  and  60,  all  day  laborers,  and^ 
persons  working  with  their  parents  must  annually  contribute  to  this  fund  1  krone  (SO. 27)  for 
men,  and  30  (ire  ($0.08)  for  women.  The  male  head  of  each  household  must  pay  this  contribu- 
tion for  every  person  who  resided  with  him  during  the  year,  but  he  may  deduct  it  from  the  wages 
of  his  employees.  For  non-payment  of  these  contributions,  property  may  be  attached.  The 
only  persons  exempt  from  paying  contributions  are  those  without  means  who  are  responsible 
for  maintaining  one  or  more  dependents  who  are  unable  to  provide  for  themselves;  those  un- 
able to  earn  wages  on  account  of  sickness  or  other  causes;  and  those  who  have  provided  for 
their  old  age  by  purchase  of  an  annuity  of  at  least  150  kroner  ($40.20). 

Pensions  are  granted  to  persons  over  60  years  of  age  who  have  received  no  poor  relief  during 
a  prior  period  of  ten  years.  The  minimum  pension  is  20  kroner  ($5.36)  and  the  maximum 
pension  granted  may  not  exceed  200  kroner  ($53.60). 

For  the  first  10  years  after  the  establishment  of  these  relief  funds  all  contributions  plus 
accrued  interest  must  be  added  to  the  funds.  In  later  years  one-half  of  such  contributions  plus 
interest  is  added  to  the  funds,  while  the  remainder  is  distributed  in  pensions. 

Funds  are  administered  in  cities  by  the  magistrates,  in  rural  communities  by  the  parish 
council,  and  these  officials  may  set  aside,  as  their  salaries,  4  per  cent  of  all  contributions  levied. 
They  must  also  elect  two  persons  who  audit  the  annual  balance  sheet  of  the  respective  funds. 

Source.  —  Lov  om  Understottelseskasser  for  Almuesfolk,  cited  in  Zacher,  Die  Arbeiterversicherung  im 
Auslande,  1898. 

NON-CONTRIBUTORY  OLD-AGE  PENSIONS. 

Although  non-contributory  old-age  pension  systems  have  been  adopted  in  only 
a  very  few  countries,  the  operation  of  these  systems  is  being  considered  with  a  great 
deal  of  interest,  particularly  since  the  passage,  in  1908,  of  the  act  which  provided  for 
the  payment  in  the  United  Kingdom  of  old-age  pensions  on  the  non-contributory  plan. 
This  pension  scheme,  while  not  yet  fully  perfected,  appears  to  have  worked  surprisingly 
well,  and  it  has,  therefore,  been  discussed  at  some  length.  Similar  systems,  previously 
adopted  in  Denmark,  New  Zealand,  AustraHa,  and  New  South  Wales,  have  also 
been  considered. 

This  form  of  old-age  relief  is  justified  by  its  advocates  on  the  ground  that  all 
persons  who  have,  for  a  considerable  portion  of  their  adult  lives,  engaged  in  honorable 
labor  are  entitled  to  freedom  from  anxiety  on  account  of  their  physical  needs  during 
their  declining  years.  Accordingly,  in  all  such  systems  deserving  persons  only,  who 
are  without  property  or  sufficient  income  to  provide  for  immediate  necessities,  are 
eligible  to  receive  pensions. 

United  Kingdom.  The  British  old-age  pension  act  was  passed  in  1908  and  revised  in 
1911,  and  was  the  result  of  earnest  consideration  for  at  least  twenty-five  years  during  which 
five  parliamentary  commissions  had  investigated  the  subject  and  many  different  plans  had 
been  proposed.  The  non-contributory  plan  was  adopted  because  that  was  the  plan  favored  by 
the  labor  party  and  because  there  was  urgent  need  of  immediate  relief.  About  one-fifth  of  the 
whole  population  of  the  United  Kingdom  above  the  seventieth  year  were  actually  paupers  when 
the  act  was  passed,  and  it  was  recognized  that  no  plan  of  contributory  insurance  could  be  of  any 
avail  to  those  who  were  already  aged.  Both  men  and  women,  married  or  single,  over  seventy 
years  of  age,  of  British  nationality,  who  for  12  years  out  of  the  last  20  years  before  considera- 
tion of  their  claims  have  been  resident  in  the  United  Kingdom,  and  whose  annual  income  doea 
not  exceed  £31  10s.  ($153)  are  eligible  for  pensions.     The  "character"  disqualifications  are: 

(1)  Habitual  refusal  to  work  according  to  ability,  opportunity  and  need. 

(2)  Imprisonment  for  crime  during  the  preceding  ten  years,  without  the  option  of  a  fine.  Such  imprison- 
ment for  six  weeks  disqualifies  for  two  years  after  release,  imprisonment  for  a  longer  period  disqualifies  for  ten 
years. 


170 

(3)  Conviction  under  the  inebriates  act,  which  disqualifies  for  six  months  unless  otherwise  directed  by 
the  judge.     Habitual  inebriety  may  disqualify  for  ten  years. 

(4)  Persons  under  detention  as  lunatics,  and  inmates  of  institutions  where  board  and  lodging  amounts  to 
an  income  above  the  pensionable  limit  are  disqualified. 

More  important  in  actual  effect  than  any  of  the  foregoing  is  the  disqualification  of  those 
in  receipt  of  poor  relief,  except  medical  aid,  after  the  granting  of  a  pension.  This  may  be  termed 
a  "thrift"  test  since  it  assumes  that  a  pensioner  should  have  some  means  of  his  own  to  supple- 
ment his  pension.  Under  the  original  act  the  receipt  of  poor  relief  by  any  dependent  of  a 
pensioner  was  a  disqualification,  but  the  amendment  of  1911  restricts  the  disqualification  to  the 
pensioner  himself.  A  pension  may  be  revoked  for  any  cause  which  would  disqualify  a  new 
applicant. 

The  amount  of  the  pension  varies  with  the  pensioner's  income,  being  5s.  ($1.22)  per  week 
for  incomes  of  not  more  than  £21  ($102)  and  graded  in  such  a  way  that  the  total  income 
(including  the  pension)  shall  not  exceed  £34  ($165).  The  income  from  any  property  is  reckoned 
at  5  per  cent  per  annum  of  its  net  capital  value,  irrespective  of  the  actual  income  therefrom. 
In  the  case  of  a  married  couple,  the  income  of  each  is  taken  to  be  one-half  of  the  total  income 
of  both.  Nearly  all  pensions  (about  94  per  cent  in  1912)  are  for  the  full  amount  of  5s.  ($1.22) 
per  week. 

The  normal  pension  of  £13  (about  $63  a  year)  is  low  when  judged  by  an  American  standard. 
Still  it  is  notably  higher  than  the  average  German  old-age  or  invalidity  pension  ($40  and  $48 
respectively).  Moreover  an  aged  couple  in  Great  Britain  receives  two  pensions,  whereas  in 
Germany  such  couple  receives  but  a  single  pension.  Thus  the  total  annuity  of  a  married  couple 
is  nearly  three  times  as  large  in  the  United  Kingdom  as  in  Germany. 

At  the  close  of  the  fiscal  year,  1914-1915,  the  number  of  pensioners  was  987,238,  having 
increased  from  647,494  in  1909,  and  from  the  outset  the  number  was  much  greater  than  had 
been  anticipated.  The  actual  enrollment  in  the  first  three  months  exceeded  the  estimates  for 
the  second  year  by  250,000.  This  great  discrepancy  between  the  estimated  number  and  the 
actual  number  shows  that  the  pension  system  uncovered  much  unsuspected  poverty  among 
the  aged.  It  was  supposed  that  only  one-third  of  the  population  70  years  of  age  and  over  could 
qualify  for  a  pension,  but  as  a  matter  of  fact  624  out  of  each  1,000  persons  of  pensionable  age  in 
England  and  Wales  were  on  the  pension  rolls,  according  to  the  Census  of  1911.  This  means 
that  only  two  out  of  every  five  aged  persons  were  in  receipt  of  an  annual  income  of  at  least 
$153,  from  earnings  or  savings.  For  the  United  Kingdom  as  a  whole,  the  proportion  was  637 
per  1,000. 

The  great  increase  (over  200,000)  in  the  pension  roll  between  1910  and  1911  was  due  to  the 
removal  of  an  important  disqualification.  As  the  act  first  stood,  the  receipt  of  poor  relief  at 
any  time  after  January  1,  1908,  was  a  bar  to  the  granting  of  a  pension.  The  removal  of  this 
disqualification  at  the  close  of  1910  added  160,000  names  to  the  pension  roll.  In  other  words, 
160,000  persons  who  were  68  years  of  age  or  over  in  1908,  received  poor  relief  before  attaining 
the  age  of  70  years.  This  is  rather  conclusive  evidence  that  the  pensionable  age  is  altogether 
too  high. 

The  cost  of  pensions  has  increased  correspondingly.  Thus  during  the  fiscal  year  1908- 
1909,  the  expenditure  wa«  £8,077,110,  12s.  ($39,307,259),  having  increased  to  £12,315,061,  43. 
($59,931,245)  for  the  fiscal  year,  1912-1913. 

The  present  "character"  and  "thrift"  tests  are  less  severe  than  under  the  original  act; 
nevertheless,  12,941  persons  were  disqualified  under  these  tests  during  1913.  Of  this  number, 
10,092  were  disqualified  because  of  receipt  of  poor  relief  after  the  granting  of  a  pension.  In 
some  cases  pensioners  preferred  to  be  maintained  in  the  workhouse  to  subsisting  upon  such 
a  small  pension  as  $1.22  per  week.  In  other  cases,  there  was  a  deliberate  attempt  to  secure 
both  forms  of  relief.  By  means  of  "character"  and  "thrift"  tests  about  one  person  in  every 
thirty  applicants  is  disqualified.  One  of  the  arguments  advanced  by  advocates  of  an  old-age 
pension  was  that  the  cost  would,  to  a  large  extent,  be  offset  by  the  reduction  in  poor  relief,  and 
this,  in  a  measure,  has  been  found  to  result.  The  number  of  workhouse  (almshouse)  inmates 
70  years  of  age  and  over  in  England  and  Wales  has,  it  is  true,  greatly  decreased,  but,  as  such 
persons  are,  for  the  most  part,  physically  or  mentally  unfit  to  maintain  an  independent  life, 
even  with  the  aid  of  a  pension,  a  better  test  is  afforded  by  the  number  of  persons  seventy  years 


171 

and  over  who  received  "out-relief."  The  decrease  in  the  number  of  actual  paupers  in  England 
and  Wales  since  1910  has  been  70.9  per  cent.  However,  the  old-age  pension  system,  while  re- 
sulting in  a  decreased  expenditure  on  account  of  almshouse  and  out-relief,  as  such,  has  on  the 
other  hand  added  greatly  to  the  budget  of  England  and  Wales,  and  it  has  been  estimated  that 
old-age  pensions  have  cost  at  least  four  times  as  much  as  would  have  been  expended  under  the 
former  systems  of  poor  relief. 

The  maximum  pension  of  £13  (S63  per  annum)  is  less  than  one-half  the  cost  of  maintaining 
a  workhouse  inmate  and  less  than  twice  the  cost  of  giving  "out-relief"  to  the  same  individual. 
The  great  increase  in  the  cost  of  old-age  pensions,  over  poor  relief,  is,  accordingly,  due  to  in- 
crease in  the  number  of  persons  relieved.  The  pension  roll  of  England  and  Wales  on  March 
31,  1915,  comprised  691,405  names,  of  whom  3,413  received  institutional  care,  and  5,897  re- 
ceived outdoor  relief,  both  of  non-disqualifying  character.  The  old-age  pension  system,  there- 
fore, in  part  replaces  poor  relief,  in  part  supplants  private  charity,  and  in  part  supplements 
incomes  too  small  for  proper  maintenance. 

The  principal  defects  of  the  old-age  pension  sj^stem  are  as  follows:  (1)  The  maximum 
pension  of  £13  (S63.26)  a  year  is  too  small  and  the  income  limit  for  eligibility  of  £31  10s.  (S153) 
a  year  is  too  low,  in  view  of  the  fact  that  the  cost  of  living  has  risen  considerably  since  1906; 
(2)  the  pensionable  age  of  70  is  too  high,  for  the  reason  that  a  large  proportion  of  those  in  need 
of  a  pension  become  incapable  of  earning  a  li\'ing  long  before  reaching  70  years  of  age;  con- 
sequently an  old-age  pension  ought  to  be  granted  as  soon  as  one  becomes  unable  to  earn  a  living, 
at  whatever  age,  such  cases  being  but  partially  pro\'ided  for  by  disablement  benefits  under  the 
Insurance  Act.  Furthermore^  disablement  benefits  are  received  only  by  insured  persons,  who 
constitute  less  than  50  per  cent  of  the  population  over  16  years  of  age  and  who  receive  an  income 
of  less  than  £160  (S779). 

The  old-age  pension  act  is  administered  by  the  Local  Government  Board  under  which  are 
local  pension  committees  for  boroughs  and  urban  districts  and  paid  district  pension  officers. 
These  authorities  have  worked  together  very  conscientiously,  and  have  displayed  tact  and 
sympathy.  The  cost  of  administration  for  1913  was  about  9s.  8d.  (S2.35)  for  every  £100  (S487) 
of  pensions  granted,  or  less  than  5  cents  for  every  dollar  distributed. 

Although  it  has  been  found  necessary  to  amend  the  old-age  pension  act  from  time  to  time, 
and  although  the  system  has  yet  to  be  perfected  in  certain  details,  it  has  operated  quite  satis- 
factorily even  during  the  short  experimental  period  of  less  than  eight  years.  The  system  has 
proved  to  be  a  source  of  real  blessing  to  the  aged  and  deserving  poor,  not  only  because  of  its 
provision  for  material  needs  late  in  life,  but  because  it  removes  the  cause  of  great  anxiety*  with 
respect  to  their  physical  needs  during  advancing  years. 

Sources.  —  7  Edward  VII,  c.  40;  1  &  2  George  V,  c.  16;  Annual  Reports  of  Local  Government  Boards,  1913- 
15;  Report  on  Old  Age  Pensioners  and  Aged  Paupers  (England  and  Wales)  (Cd.7015) ;  Fourth  Report  of  Com- 
missioner of  Customs  and  Excise —  1913  (Cd.  6993);  British  Statistical  Abstracts;  British  Board  of  Trade 
Labour  Gazette,  1913;  The  Labour  Yearbook,  1916;  H.  J.  Hoare,  Old  Age  Pensions,  1915. 

Denmark.  The  oldest  of  the  non-contributory  pension  systems  is  that  of  Denmark, 
which  dates  from  1891.  The  pension  age  (60  years)  is  the  lowest  fixed  by  any  country.  The 
income  and  property  qualification  is  rather  vague,  namely:  Inability  to  provide  one's  self 
and  dependents  with  necessary  subsistence.  The  required  residence  is  only  10  years.  The 
"character"  and  "thrift"  tests,  on  the  other  hand,  are  unusually  rigorous.  No  one  shall  receive 
a  pension  who  has  ever  been  convicted  of  crime,  unless  subsequently  restored  to  civil  rights, 
or  who  has  received  any  poor  relief,  except  medical  aid,  for  one's  self  or  dependents,  during  the 
five  years  next  preceding  the  application  for  a  pension,  or  whose  own  poverty  has  been  due  to 
extravagance  or  disorderly  habits. 

The  amount  of  the  pension  is  not  determined  by  fixed  rules  but  varies  with  individual  cir- 
cumstances, and  must  be  sufficient  for  support,  when  supplemented  by  the  pensioner's  other 
income.  In  computing  the  pensioner's  means  no  account  is  taken  of  any  income,  ownership  of 
dwelling,  etc.,  amounting  to  an  annual  income  of  less  than  100  kroner  (S26.80).  In  contrast  with 
Great  Britain,  New  Zealand,  New  South  Wales  and  Australia,  where  man  and  wife  receive 
separate  pensions,  the  family  in  Denmark  is  treated  as  a  unit,  and  the  pension  granted  to  the 
head  of  a  family  is  for  the  support  of  himself  and  his  dependents.     The  average  pension  in- 


172 

creased  from  $27.23  in  1895  to  $42.89  in  1907,  this  increase  having  no  doubt  been  made  in 
consideration  of  the  increasing  cost  of  the  necessities  of  life. 

There  is  much  variation  in  the  amounts  of  pensions  granted  to  individuals,  being  larger 
for  heads  of  families  than  for  individuals,  and  higher  in  Copenhagen  than  elsewhere.  Of  single 
men  only  37.5  per  cent,  and  of  single  women  only  33.4  per  cent  in  the  country  as  a  whole,  re- 
ceived more  than  200  kroner  ($54)  during  the  fiscal  year  1911-12.  The  total  number  of  bene- 
ficiaries during  that  period  was  79,340.  Of  this  number  16,710,  or  21  per  cent,  were  heads  of 
families;  20,085,  or  25  per  cent,  were  dependents  (mostly  wives);  9,356,  or  12  per  cent,  were 
single  men;  and  33,034,  or  42  per  cent,  were  single  women.  As  in  other  countries  the  number 
of  pensioners  has  increased  faster  than  the  population,  having  been  60,066  in  1902  and  79,340 
in  1911. 

This  increase  is  partly  due  to  the  removal  of  disqualifications  by  successive  amendments 
to  the  original  act  and  partly  to  a  greater  familiarity  with  the  provisions  of  the  act,  but  more 
particularly  to  the  great  desire  on  the  part  of  the  aged  to  avoid  applying  for  poor  relief  between 
the  fifty-fifth  and  the  sixtieth  year,  so  that  they  may  be  eligible  to  receive  a  pension. 

Since  the  inauguration  of  the  system  the  aggregate  cost  has  increased  enormously.  In 
1912-13  the  country  spent  13,100,000  kroner  ($3,510,800)  as  compared  with  2,600,000  kroner 
($696,800)  in  1892.  In  1913-14  the  total  net  disbursement  was  14,013,954  kroner  ($3,755,740), 
of  which  the  State  paid  7,054,354  kroner  ($1,890,567),  the  cost  being  about  equally  divided 
between  the  national  government  and  the  communes. 

As  in  New  Zealand,  pensioners  who  are  unable  to  care  for  themselves  are  cared  for  in  special 
homes,  some  of  which  are  in  groups  of  detached  cottages,  others  are  single  large  buildings.  The 
inmates  are  under  no  special  restraint  and  much  concern  for  their  comfort  is  shown.  In  1911-12, 
three  per  cent  of  the  total  number  of  pensioners  were  cared  for  in  these  homes  at  a  cost  of 
1,059,834  kroner  ($284,036). 

Old-age  pensions  are  administered  primarily  by  the  municipal  and  communal  authorities, 
under  whom  serve  paid  and  well-trained  inspectors.  The  Minister  of  the  Interior  has  general 
supervision  and  to  him  are  referred  appeals  from  decisions  of  the  local  authorities.  As  the  au- 
thority to  fix  the  amount  of  pensions  rests  with  the  local  officials  the  amount  of  pensions  granted, 
particularly  in  the  rural  communes,  is  kept  rather  low  from  motives  of  economy,  resulting  in 
some  dissatisfaction  and  provision  for  appealing  from  such  decisions  is  therefore  made. 

Sources.  —  Annual  Report  of  the  U.  S.  Commissioner  of  Labor,  1909,  Vol.  I,  pp.  623-649;  Statistisk  Aarbog, 
(Statistical  Yearbook)  1912  and  1915;  Statistiske  Meddelelser,  K(|)benhavn  1914,  AIderdomsunderst(^ttel3en, 
1902-12,  ch.  V. 

New  Zealand.  The  New  Zealand  old-age  pension  system  was  established  in  1898. 
The  Act  was  amended  in  1905  so  as  to  provide  that  investigations  of  claims  might  be  heard  in 
private.  By  amendments  in  1912  and  1913  the  acts  relative  to  widows'  and  military  pensions 
were  merged  with  the  old-age  pension  act. 

All  persons,  65  years  of  age  and  over,  except  aliens  and  Maoris,  who  have  been  citizens 
for  at  least  three  years,  and  who  have  resided  in  New  Zealand  for  at  least  25  years  (four  years 
absence  being  allowed),  whose  property  does  not  exceed  £260  ($1,265),  and  whose  income  does 
not  exceed  £60  ($292)  per  year,  or  whose  joint  income  in  the  case  of  a  married  couple  does  not 
exceed  £90  ($438),  are  eligible  to  receive  a  pension,  provided  that  the  applicant  has  led  a  sober 
and  reputable  life  for  at  least  one  year  next  preceding  application,  has  not  been  imprisoned 
for  as  much  as  four  months  within  five  years,  or  for  as  much  as  five  years  within  25  years,  and 
has  not  deserted  his  (or  her)  family  within  12  years. 

The  amount  of  the  pension  is  £26  ($127)  per  annum,  less  £1  ($4.87)  for  every  £1  of  income 
over  £34  ($165)  and  for  every  £10  ($48.67)  of  net  property  above  £50  ($243).  In  the  case  of  a 
married  couple  it  is  estimated  jointly  and  equally  divided.  Life  insurance  is  not  counted  as 
property  and  income  from  property  is  disregarded  (being  offset  by  the  property  limit).  A 
pensioner  may  retain  a  homestead  to  the  value  of  £650  ($3,163),  which  shall  revert  to  the  colony 
at  the  death  of  the  pensioner.  Parents  having  two  or  more  children  may,  in  case  of  need,  receive 
a  pension,  —  in  the  case  of  the  father  at  the  age  of  60  years,  and  in  the  case  of  the  mother  at 
the  age  of  55  years.  Such  pension  to  parents  is  the  same  in  amount  as  an  old-age  pension,  but 
may  be  increased  by  not  more  than  £13  ($63)  per  year  if  required  by  circumstances.    Pensioners 


173 

who  require  institutional  care,  or  who  are  unable  to  maintain  homes  for  themselves,  may  be 
maintained  in  suitable  homes  or  hospitals.  The  cost  of  maintenance  in  such  cases  is  deducted 
from  the  pension. 

The  numbeV  of  old-age  pensioners  at  the  close  of  the  fiscal  year  ending  in  1913  was  16,509, 
constituting  36  per  cent  of  the  entire  population  qualified  by  age  and  residence  for  receipt  of 
a  pension.  The  great  majority  (14,017)  were  receiving  the  "normal"  pension  of  $127.  Only 
32  were  receiving  parents'  pensions  above  the  normal  amount.  The  total  amount  of  pensions 
paid  during  the  fiscal  year  was  £415,761  ($2,023,301)  or  7s.  lOd.  ($1.91)  per  capita.  On  March 
31,  1915,  there  were  in  force  19,352  pensions  which  represented  an  amount  of  £475,970 
($2,316,308),  while  the  estimated  population,  exclusive  of  Maoris,  was  1,095,994  on  December  31, 
1914.    The  per  capita  cost  was  therefore  8s.  8d.  ($2.11)  in  1914. 

The  New  Zealand  old-age  pension  law  is  administered  by  a  Commissioner  of  Pensions  and 
by  district  Registrars,  most  of  whom  are  court  clerks.  Pensions  are  paid  monthly,  in  advance, 
through  the  post  office. 

It  must  be  said  that  the  pension  system  has  not  resulted  in  materially  reducing  expenditures 
in  the  form  of  public  charitable  aid,  but  it  has  tended  to  decrease  voluntary  charitable  con- 
tributions, for  the  reason  that  tax  payers  who  have  contributed  toward  the  pension  funds  through 
taxation  appear  to  be  disposed  to  reduce  their  voluntary  contributions  to  public  charities. 

Sources.  —  62  Victoria,  No.  14;  64  Victoria,  No.  28;  8  Edward  VII,  No.  245;  1  George  V,  No.  45;  Annual 
Report  of  the  Pensions  Department,  1913;  New  Zealand  OfiBcial  Year  Book,  1913-1914;  Le  Rossignol  and 
Stewart,  State  Socialism  in  New  Zealand,  1910;  Statistics  of  New  Zealand,  Pt.  1,  1914. 

Australia.  The  Australian  invalid  and  old-age  pension  law  became  operative  July  1, 
1909.  Prior  thereto  the  separate  States  of  New  South  Wales,  Victoria  and  Queensland  had 
established  pension  systems  of  their  own,  so  that  the  Commonwealth  Fund  took  over  some 
60,000  pensioners  in  December,  1909,  when  the  separate  systems  were  combined  in  a  single 
system. 

The  Australian  law  is  very  similar  to  that  of  New  Zealand.  The  pension  age  is  fixed  at 
65  years  for  men  and  at  60  years  for  women.  The  residence,  race,  citizenship  and  character 
qualifications  are  similar  to  those  of  New  Zealand.    The  property  limit  is  £310  ($1,509). 

An  invalidity  pension  is  payable  to  any  person  above  the  age  of  16  who  is  permanently  in- 
capacitated for  work  provided  that  he  (or  she)  shall  have  resided  in  Australia  for  at  least  five 
years,  is  not  receiving  an  old-age  pension,  has  no  claim  upon  an  employer  for  accident  com- 
pensation, has  become  permanently  incapacitated  while  in  Australia,  did  not  purposely  pro- 
duce the  incapacity,  and  does  not  have  property  or  income  in  excess  of  the  old-age  pension 
limits. 

The  annual  pension  is  such  as  the  Commissioner  (or  Deputy  Commissioner)  of  Pensions 
in  each  case  "deems  reasonable  and  sufficient",  but  must  not  exceed  £26  ($127)  per  annum 
nor  be  such  as  to  bring  the  pensioner's  total  income  above  £52  ($253).  The  "normal"  pension 
of  £26  ($127)  is  subject  to  a  deduction  of  £1  ($4.87)  for  every  £10  ($48.67)  of  net  property  above 
£50  (S243)  exclusive  of  a  homestead,  or  above  £100  ($487)  inclusive  of  a  homestead. 

The  number  of  old-age  pensioners  has  increased  out  of  all  proportion  to  the  increase  of 
population,  the  percentages  of  increase  from  1910  to  1913  having  been  26.65  for  pensioners  and 
9.95  for  population.  This  is  due  in  part  to  an  increasing  proportion  of  old  people  (immigration 
of  young  and  middle-aged  persons  having  decreased  in  proportion  to  the  total  population),  and 
in  part  to  a  lowering  of  the  age  requirement  for  women  from  65  to  60  years  at  the  close  of  1910. 
There  was  also  a  small  increase  attributable  to  a  wider  knowledge  of  the  pension  plan  and  to 
the  dispelling  of  the  impression  that  the  receipt  of  an  old-age  pension  implies  pauperism. 

Invalidity  pensions  are  also  granted  in  Australia,  and,  as  respects  aged  beneficiaries,  they 
are  virtually  (as  in  Germany)  old-age  pensions,  and  should  be  considered  in  this  connection. 
On  July  30,  1913,  the  number  of  old-age  pensions  in  force  was  82,943,  and  the  number  of  in- 
validity pensions  was  13,739.  The  total  amount  paid  in  pensions  during  the  fiscal  year  ending 
June  30,  1913,  was  £2,289,048  ($11,139,652)  representing  a  per  capita  amount  distributed  fort- 
nightly to  these  pensioners  of  19s.  6d.  ($4.74).  The  cost  of  administration  was  about  2  per  cent 
of  the  total  amount  distributed. 


174 

The  Australian  act  is  administered  by  a  Commissioner  of  Pensions  with  the  assistance  of 
a  deputy  in  each  State  and  of  local  Registrars. 

Sources.  —  Invalidity  and  Old  Age  Pensions  Act,  1908,  No.  17  and  1909,  Nos.  3  and  21;  Old  Age  and 
Invalid  Pension  Report  to  the  Commonwealth  of  Australia,  1913;  Oflncial  Yearbook  of  Australia,  1914. 

New  South  Wales.  The  Old-Age  Pension  Act  became  operative  on  August  1,  1901, 
but  virtually  became  inoperative  on  July  1,  1909,  when  that  portion  of  the  Commonwealth 
Invalidity  and  Old  Age  Pension  Act  relating  to  old-age  pensions  for  men  went  into  effect.  An 
act  relative  to  women,  60  years  of  age  and  over,  became  operative  on  December  15,  1910. 

The  conditions  governing  the  payment  of  a  pension  vary  slightly  from  those  established 
under  the  State  act.  The  pensionable  age  is  60  years  for  women  and  for  permanently  incapaci- 
tated men  and  65  years  for  other  men.  Pensioners  must  have  been  in  residence  for  at  least  20 
years  except  that  absences  aggregating  one-tenth  of  total  period  of  residence  are  not  considered. 
Aliens  and  aborigines  are  disqualified.  The  maximum  amount  of  a  pension  is  £26  ($127),  but 
income  and  pension  combined  must  not  exceed  £52  ($253) ;  possession  of  a  home  and  gifts  or 
allowances  are  not  included  in  income. 

On  June  30,  1914,  the  number  of  persons  receiving  old-age  pensions  was  32,165,  of  whom 
14,217  were  men  and  17,948  were  women.  The  per  capita  fortnightly  pension  was  193.  5d. 
($4.72).  During  the  fiscal  year  ending  in  1914  the  Commonwealth  paid  for  invalidity  and  old- 
age  pensions  a  total  of  £2,579,265  ($12,551,993),  the  administrative  cost  having  been  £46,946 
($228,463),  and  for  the  asylum  care  of  pensioners  a  total  of  £14,236  ($69,279).  The  number  of 
old-age  pensions  per  1,000  of  population  increased  from  17.3  per  cent  in  1913  to  17.5  per  cent 
in  1914,  while  there  was  an  increase  in  1914  of  £290,217  ($1,412,341)  in  the  total  amount  paid 
for  pensions  and  an  increase  of  £2,423  ($11,792)  in  the  cost  of  administration. 

Source.  —  Official  Yearbook  of  New  South  Wales  for  1913  and  1914. 


175 


BIBLIOGRAPHY 


OLD  AGE  PENSIONS,  1912-1916. 


Note.  —  The  following  is  a  descriptive  list  of  the  more  important  titles,  both  of  books  and 
articles  in  periodicals,  including  general  discussions  of  social  insurance  which  bear  upon  this  im- 
mediate topic,  issued  during  the  period  January,  1912  to  May,  1916. 


Australia.    Old-age  and  invalid  pensions.    In 
Official  year  book  of  the  commonwealth  of 
Australia.     Melbourne.     Commonwealth 
Bureau  of  Census  and  Statistics. 
No.  6.     1913.     p.  1168-1175. 
No.  7.     1914.     p.  1042-1048. 

Old     age     and    invalid     pensions    in 

Australia.  In  British  board  of  trade  labour 
gazette,  v.  20.  p.  130.  London.  Apr. 
1912. 

Baldwin,  F.  Spencer.  Old  age  insurance.  In 
American  labor  legislation  review,  v,  3. 
p.  202-212.    New  York.    June  1913. 

Bellom,  Maurice.  La  Ugislation  beige  sur  les 
retraites  des  ouvriers  mineurs,  1911-1913. 
Paris.    Dimod&Pinat.    1913.    136  p. 

A  study  of  Belgian  legislation  relating  to 
miners'  pension  systems.  The  investigation  was 
made  by  M.  Bellom  under  commission  from  the 
French  minister  of  public  works. 


—  La  loi  anglaise  d'assurance  sociale  de 
1911.  In  Journal  des  iconomistes.  72d 
year.  Paris.  1913.  Mar.  15.  p.  399- 
425;  June  15.    p.  372-390. 

Parts  5  and  6  of  a  study  of  the  British  na- 
tional insurance  act  of  1911.  The  first  four  parts 
were  published  during  1912. 


La  prSvoyance  legale  en  faveur  des  em- 
ployes. Exemples  suivis  d'une  sSrie  de  con- 
clusions pratiques.  Paris.  G.  &  M. 
Ravisse.     1913.     108  p. 

A  study  of  social  insurance  legislation  in 
Germany  and  Austria,  affecting  employees 
other  than  manual  workers,  with  comparisons 
for  the  two  countries,  and  conclusions. 


—  La  statistique  Internationale  de  Vassur- 
ance  contre  I'invalidite.  Rapport  pr^sent^ 
et  propositions  soumises  k  I'institut  inter- 
national de  statistique.  Vienna.  F.  Jas- 
per.    1913.     35  p. 

International  statistics  of  social  insurance. 
A  report  presented  to  the  international  statis- 
tical institute  and  propositions  submitted. 


Les  premiers  rfisultats  de  la  nouvelle 

loi  anglaise  d'assurance  sociale.  In  3  pts. 
In  Journal  des  iconomistes.  72d  year. 
Paris.  1913.  Aug.  15.  p.  264-277;  Sept. 
15.    p.  434-446;  Nov.  15.    p.  225-252. 

A  discussion  of  the  results  of  the  new  British 
national  insurance  act. 

Canada.  Old  age  pensions.  Investigation  of 
select  committee  of  house  of  commons. 
In  Labour  gazette,  v.  13.  p.  983-986. 
Ottawa.     Mar.  1913. 

Old  age  pensions  system  for   Canada. 

Memorandum,  Oct.  1912.  Ottawa.  Gov- 
ernment Printing  Bureau.    1912.    144  p. 

Carman,  Francis  A.  Canadian  government 
annuities.  A  study  of  their  relation  to  the 
problem  of  poverty  in  old  age.  In  Politi- 
cal science  quarterly,  v.  30.  p.  425-447. 
New  York.     Sept.  1915. 

Carr,  a.  V.  S.  National  insurance.  With  a 
preface  by  Lloyd  George.  New  York. 
Macmillan.    1914.    4th  ed.    1284  p. 

CoMAN,  Katherine.  Insurance  for  the  super- 
annuated worker  in  Spain.  In  Survey,  v. 
31.  p.  669-671.  New  York.  Feb.  28, 
1914. 

Old   age  and  invalidity  insurance  in 

Sweden.  In  Survey,  v.  31.  p.  318,  319. 
New  York.     Dec.  20,  1913. 

■  The  problems  of  old  age  pensions  in 

England.  In  Survey,  v.  31.  p.  640-642. 
New  York.     Feb.  21,  1914. 

Twenty  years  of  old  age  pensions  in 

Denmark.  In  Survey,  v.  31.  p.  463-465. 
New  York.     Jan.  17,  1914. 

Cross,  I.  B.  Experience  in  state  compensation 
insurance  in  California.  In  Survey,  v.  34. 
p.  173,  174.     New  York.     May  22,  1915. 

Delauney,  — .  De  I' intervention  de  la  caisse 
nationale  des  retraites  pour  la  vieillesse  en 
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PiNOT,  P.,  et  Comolet-Tirman,  J.  Traite  des 
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1913.     2d  ed.  enl.     513  p. 

A  commentary  on  the  theory  and  practice  of 
the  old-age  pensions  in  France. 

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and  insurance  [for  American  telephone  and 
telegraph  company].  New  York.  Ameri- 
can Telephone  and  Telegraph  Co.  Jan. 
1,1913.    14  p. 

This  plan  applies  to  employees  of  allied  com- 
panies, as  the  Western  union  telegraph  company 

Report  of  the  committee  on  preliminary  foreign 
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in  Great  Britain  and  New  Zealand  (senate  doc. 
no.  290,  61st  cong.  2d  sess.),  and  civil  service 
retirement  in  New  South  Wales  (senate  doc. 
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text  of  proposed  legislation  and  the  schedule 
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BULLETIN   No.   6 


THE    INITIATIVE    AND   REFERENDUM 


Note. 
Since  this  Bulletin  was  prepared,  Massachusetts  has  adopted  a  consti- 
tutional amendment  providing  for  the  initiative  and  referendum  for  both 
constitutional  amendments  and  statutes,  but  no  attempt  has  been  made 
to  re^^se  the  statements  herein  made  because  of  this  action. 


CONTENTS. 


PAGE 

Definitions :  — 

Forms  of  Initiative, 183 

Fonns  of  Referendum, 184 

The  Development  of  the  Initiative  and  Referendum,  ....  185 

The  Introduction  of  the  State-wide  Initiative  and  Referendum,        .  188 

The  Initiative :  — 

The  Initiative  on  Constitutional  Amendments,         .       .       .       .189 

The  Initiative  on  Ordinary  Laws,  or  The  Statutory  Initiative,     .  192 

The  Indirect  Statutory  Initiative, 192 

The  Direct  Statutory^  Initiative, 195 

Majority  Required  for  the  Adoption  of  a  Measure,      .        .        .195 
Amendment  or  Repeal  of  Initiative  Measures  adopted  by  the 

Electors, 196 

Resubmission  of  Rejected  Measures, 196 

The  Referendum :  — 

The  Compulsory  Referendum  on  Constitutional  Amendments,     .  196 

The  Optional  Referendum, 200 

The  Legislative  Referendum, 200 

The  Statutor}^  Referendum:  by  Petition, 201 

Emergency  Measures, 203 

Number  of  Signers  required, 205 

Time  of  FiUng  the  Petition, 205 

Effect  of  Filed  Petition  upon  the  Law, 206 

.  AppUcability  to  Part  of  a  Measure, 206 

Time  of  Submission  to  the  Voters, 207 

Majority  Required  for  Adoption, 207 

Amendment  and  Repeal  of  Adopted  Measures,        .       .       .  207 

How  often  Invoked,  and  how  Many  Laws  Rejected,              .  208 

Nature  of  Laws  rejected, 209 


182 

PAGE 

The  Statutory  Initiative  and  Referendum:  Common  Provisions,    .  210 

Method  of  Invoking  the  Initiative  and  Referendum :  TheJPetition,  211 

Form  and  Content, 211 

Signatures, 211 

Who  may  SoHcit,  and  on  What  Basis, 211 

What  Information  must  Signer  Give, 212 

How  Assure  Genuineness, 212 

Basis  of  Computing  Number  of  Signers, 213 

FiHng  of  the  Petition, 213 

Submission  of  Measures  to  Voters, 214 

Methods  of  Pubhcity, 214 

TheBaUot, 215 

Conflicting  Provisions  or  Measures, 215 

Majority  Required  for  Adoption, 216 

Canvass  of  the  Returns, 217 

Governor's  Veto  on  Submitted  Measures,  .       .       .       .       .217 

Resubmission  of  Rejected  Measures, 217 

Amendment  and  Repeal  of  Adopted  Measures,    .       .       .       .217 
Relation  of  Initiative  and  Referendum  to  Rights  of  Members  of 

the  Legislature, 218 

Number  of  Measures  on  the  Ballot  and  their  Limitation,  .       .  218 

Judicial  Decisions  relating  to  the  Initiative  and  Referendum,    .       .  219 
The  Initiative  and  Referendum  in  Local  Government,        .       .       .221 

Appendix  A.  —  Constitutional  and  Statutor}'-  Provisions  relating 

to  the  State-wide  Initiative  and  Referendum,       .       .       .  224 

Appendix  B.  —  Text  of  Constitutional  and  Statutory  Provisions 
relating  to  the  Initiative  and  Referendum  from  Typical 

States  (Oregon,  California,  Arizona,  Maine,  Maryland),   .  225 

Appendix  C.  —  Votes  in  Massachusetts  on  State  Referenda  and 

for  Governor,  1780-1916, 262 

Appendix  D.  —  Table  of  Votings  in  Oregon  and  in  Portland  City 

Elections, 268 

Bibliography, 284 


THE  INITIATIVE  AND  REFERENDUM. 


During  the  past  twenty  years  more  than  a  score  of  the  States 
of  the  Union  have  been  making  trial  of  Direct  Legislation  — 
the  enacting,  annulling  or  ratifying  of  laws  by  the  vote  of  the 
electors  —  under  forms  of  the  Initiative  and  Referendum. 

DEFINITIONS. 

The  Initiative  is  a  device  by  which  any  person  or  group  of 
persons  may  draft  a.statute,  or  constitutional  amendment,  and,  by 
securing  to  a  petition  the  signatures  of  the  requisite  number  of 
qualified  voters,  may  require  the  State  officials  (with  or  without 
action  upon  it  by  the  Legislature)  to  submit  the  measure  to 
the  electorate  at  a  general  or  special  election;  if  it  is  approved 
by  the  required  majority,  it  becomes  a  law. 

The  Referendum  is  a  device  whereby  a  measure,  already 
drafted  and  approved  by  a  representative  Legislature  or  con- 
stitutional convention,  is  held  in  suspense  until  it  shall  have 
been  submitted  to  the  voters  at  a  general  or  special  election, 
there  to  be  ratified  or  rejected  by  majority  vote. 

The  intent  of  the  Initiative  is  positive,  —  to  secure  the  enact- 
ment of  some  measure  which  the  Legislature  has  ignored  or 
failed  to  pass;  the  intent  of  most  forms  of  the  referendum,  on 
the  other  hand,  is  negative,  —  to  superpose  a  popular  veto 
upon  an  enactment  already  passed  by  the  Legislature. 

Forms  of  the  Ixitiatr'e. 

1.  Under  the  Direct  Initiative,  on  the  filing  of  a  petition 
signed  by  the  requisite  number  of  qualified  voters,  the  proposed 
constitutional  amendment  or  draft  of  a  law,  without  any  action 
having  been  taken  upon  it  by  the  representative  Legislature, 
must  be  placed  upon  the  ballot  at  the  next  election. 

2.  Under  the  Indirect  Initiative,  the  filing  of  a  petition  with 
the  requisite  number  of  signatures  necessitates  the  measure's 
being  first  reported  to  the  Legislature,  which  may  enact  it 
forthwith,  or  transmit  it  to  the  electors,  or  accompany  it  by  a 
substitute  measure,  framed  by  the  Legislature. 


184 

3.  The  Advisory  Initiative  is  a  name  sometimes  applied  to 
the  method  of  promoting  legislation  upon  a  given  question  by 
submitting  it  to  the  voters,  and  requiring  that  there  be  trans- 
mitted to  the  members  of  the  Legislature  the  result  of  these 
votings,  as  a  more  or  less  weighty  expression  of  public  opinion 
upon  the  matter  under  consideration.  (See  Bulletin  No.  7, 
The  Public  Opinion  Law  in  Massachusetts.) 

FOEMS   OF  THE  REFERENDUM. 

The  Referendum  may  be  either  Compulsory  or  Optional. 
The  Compulsory  Referendum  finds  its  most  important  illus- 
tration in  the  case  of  American  State  Constitutions  and  amend- 
ments thereto.  In  nearly  all  of  the  States  it  is  required  that 
these  be  subjected  for  ratification  to  a  popular  vote,  before  they 
can  become  law. 

Under  the  Optional  Referendum,  the  popular  vote  upon  the 
measure  in  question  is  brought  about  by  no  requirement  of  the 
fundamental  law,  but  by  the  Legislature's  general  or  special 
grant  of  this  freedom  of  choice.  The  following  forms  of  Refer- 
endum have  come  into  wide  use  in  American  States: 

1.  The  Legislature  may  refer  a  special  question  to  the  voters 
for  their  decision.  Thus,  five  times  since  the  adoption  of  the 
present  Constitution,  the  General  Court  referred  to  the  voters 
the  question  of  the  expediency  of  holding  a  constitutional  con- 
vention, and  in  1895  the  voters  were  called  upon  to  express 
their  opinion  as  to  the  expediency  of  granting  municipal  suf- 
frage to  women. 

2.  The  Legislature  may  refer  to  the  people  for  their  rejection 
or  approval  at  the  polls  any  act  or  resolve  of  the  Legislature, 
or  any  part  thereof.  (This  form  of  Referendum  was  expressly 
authorized  for  the  Massachusetts  General  Court  by  the  forty- 
second  Article  of  Amendment,  ratified  November  4,  1913.) 

3.  The  Legislature  may  grant  to  all  local  political  units  of  the 
State  the  privilege  of  determining  by  popular  vote  the  form  in 
which  the  police  power  as  to  certain  matters  shall  be  exercised 
under  general  law.  Thus  "local  option"  each  year  decides  the 
method  by  which  the  liquor  traffic  shall  be  regulated  in  the 
cities  and  towns  of  Massachusetts. 

4.  By  general  law,  the  Legislature  may  authorize  the  local 
unit  to  adopt  for  itself  certain  regulations  as  to  the  public 


185 

employment  of  labor  {e.g.,  in  regard  to  hours,  wages,  pensions, 

etc.)- 

5.  Under  general  law,  the  Legislature  may  accord  to  the 
individual  town  or  city  a  considerable  range  of  choice  as  to  its 
own  form  of  government.  Under  the  law  of  1915,  the  voters 
of  a  Massachusetts  city  by  their  own  choice  at  the  polls  may 
secure  for  themselves  any  one  of  the  four  standard  forms  of  city 
charter,  without  going  to  the  Legislature  for  a  special  enactment. 

6.  When  a  Legislature  passes  an  act  granting  a  charter  to  a 
given  city,  or  amending  a  charter,  or  enacting  other  legislation 
pertaining  to  a  given  municipality,  its  going  into  effect  is  usu- 
ally made  conditional  upon  its  being  accepted  by  a  majority 
vote  in  the  city  to  which  it  is  to  apply. 

7.  The  Statutory  Referendum  has  come  into  prominence  in 
American  States  during  the  last  twenty  years,  and  it  is  to  this 
form  that  the  word  "Referendum"  is  now  ordinarily  applied. 
Under  this  Statutory  Referendum,  upon  petition  of  a  certain 
number  of  qualified  voters,  any  act  of  the  Legislature  (with 
certain  exceptions)  must  be  referred  to  the  electorate  to  be 
approved  or  annulled  by  majority  vote  at  the  polls. 

THE   DE\^LOPMENT   OF   THE   INITIATIVE   AND 
REFERENDUM. 

The  Initiative  and  Referendum  are  often  spoken  of  as  novel 
exotics,  imported  from  Switzerland  and  first  finding  American 
soil  congenial  for  their  growth  in  the  States  of  the  Far  West. 

Direct  Legislation,  prevalent  in  the  Swiss  cantons  for  many 
centuries  in  the  primitive  lands gemeinde,  underwent  develop- 
ments in  the  last  quarter  of  the  nineteenth  century  which 
attracted  keen  interest  in  all  countries  of  democratic  ideals. 
The  Compulsory  Referendum  was  made  applicable  to  all 
changes  in  a  Swiss  constitution,  whether  federal  or  cantonal. 
In  some  form  or  other  the  change  must  be  submitted  to  a 
popular  vote.  To  other  laws  the  Optional  Referendum  is 
applied  by  the  Confederation  and  by  about  half  the  cantons; 
about  as  many  cantons  use  the  Compulsory  Referendum;  in 
only  one  are  these  laws  subjected  to  no  Referendum  at  all. 

In  two  cantons  the  Initiative  was  introduced  as  early  as  the 
middle  of  the  past  century;  it  was  taken  up  so  rapidly  that  by 
1900  it  was  to  be  found  in  every  canton  but  one.     In  1S91  it 


186 

was  made  applicable  to  amendments  to  the  Federal  Constitu- 
tion, but  it  does  not  apply  to  the  Confederation's  ordinary 
laws.^ 

South  Dakota,  1898,  was  the  first  American  State  to  adopt  a 
constitutional  amendment  providing  for  the  introduction  of  the 
Initiative  and  Referendum  on  the  Swiss  model,  and  the  next 
five  States  to  follow  her  example  were  States  of  the  Far  West. 

Yet  two  hundred  and  fifty  years  before  South  Dakota  adopted 
this  Swiss  "novelty,"  the  Puritans  of  the  Massachusetts  Bay 
Colony  were  experimenting  with  simple  forms  of  the  Initiative 
and  Referendum,  and  almost  every  present-day  variety  of  these 
devices  finds  interesting  analogue  if  not  distinct  precedent  in 
the  practice  of  the  founders  of  this  Commonwealth. 

Thus,  in  1635,  on  demand  of  the  Deputies,  the  General  Court 
ordered  that  certain  men  should  be  appointed  "to  frame  a  body 
of  grounds  of  laws  in  resemblance  to  a  Magna  Charta,  which 
being  allowed  by  some  of  the  ministers  and  the  General  Court, 
should  be  received  for  fundamental  laws."  (Winthrop,  I,  191.) 
Two  years  later,  alleging  that  the  lack  of  written  laws  had  led  to 
"many  doubts  and  much  trouble,"  the  General  Court  ordered 
that  "the  freemen  of  every  town  should  assemble  together  in 
their  several  towns,  and  collect  the  heads  of  such  necessary  and 
fundamental  laws  as  may  be  suitable."  The  "heads"  so  col- 
lected were  to  be  delivered  in  writing  to  the  Governor,  and 
reduced  to  a  "compendious  abridgment  to  be  presented  to  the 
General  Court  for  confirmation  or  rejection."  The  records  of 
Charlestown  show  that  ]Mr.  Jno.  Harvard,  with  five  others, 
was  chosen,  April  26,  1638,  "to  consider  of  some  things  tending 
towards  a  body  of  Lawes."  In  November,  1639,  the  General 
Court  passed  an  order,  instructing  a  joint  committee  of  Magis- 
trates and  Deputies  "to  peruse  all  these  models  which  have 
been  or  shall  be  further  presented  concerning  a  form  of  govern- 
ment and  laws  to  be  established,"  and  to  "draw  the  models  up 
into  one  body"  and  "take  order  that  the  same  shall  be  copied 
out  and  sent  to  the  several  towns,  that  the  Elders  of  the 
churches  and  the  freemen  may  consider  of  them  against  the 
next  General  Court."  The  records  of  the  General  Court  of 
October  7,  1641,  refer  to  "Capital  Laws,  to  be  transcribed  and 

>  For  the  working  of  the  Initiative  and  Referendum  in  Switzerland,  see  A.  L.  Lowell,  Public 
Opinion  and  Popular  Government;  W.  E.  Rappard,  in  Annals  of  American  Academy  of  Political 
and  Social  Science,  September,  1912. 


187 

sent  to  the  several  towns."  Final  action  was  taken  by  the 
General  Court  on  December  10,  1641,  when  "the  bodye  of  laws 
formerly  sent  forth  among  the  Freemen  was  voted  to  stand  in 
force."  The  Body  of  Liberties  was  not  a  mere  collection  of 
statutes;  it  partook  of  the  nature  of  a  bill  of  rights  and  a  frame 
of  government  as  well.  From  the  inception  of  the  work,  the 
initiating  suggestions  of  the  freemen  were  sought;  the  "models" 
were  sent  to  the  several  towns  that  the  freemen  might  "con- 
sider of  them  against  the  next  General  Court";  the  final  draft 
of  the  "Capital  Laws"  was  "sent  forth  among  the  Freemen", 
and  the  record  of  the  General  Court's  last  action  in  the  matter 
sounds  like  little  else  than  the  proclamation  of  the  result  of 
that  referendum. 

Six  years  later  (November  11,  1647),  the  General  Court 
passed  an  act  limiting  the  number  of  Deputies  to  one  from 
each  town;  but  on  the  same  day  suspended  the  act,  "being 
desirous  to  know  the  mind  of  the  country  herein",  and  ordered 
that  "a  copy  of  this  order  shall  be  sent  to  the  constable  of 
every  town  who  shall  call  the  freemen  together  and  acquaint 
them  herewith  that  they  may  declare  their  minds  herein." 
The  records  of  the  General  Court  for  the  following  March 
contain  this  entry:  "The  most  of  the  freemen  desiring  their 
former  liberty  of  sending  one  or  two  deputies  to  the  General 
Court,  the  former  wonted  liberty  is  continued  and  the  former 
act  repealed."  ^ 

The  records  afford  many  evidences  that  the  referendum 
served  as  an  influential  factor  in  transforming  the  Company 
of  Massachusetts  Bay  into  the  Commonwealth  of  INIassachusetts 
Bay.  Whenever  the  voters  of  Massachusetts  have  been  free  to 
express  themselves  on  constitutional  questions  and  the  times 
have  demanded  it,  the  General  Court  has  had  recourse  to  a 
referendum.  Instituted  in  1639  as  a  means  of  finding  out  what 
kind  of  a  "  Body  of  grounds  of  laws  in  resemblance  to  a  Magna 
Charta"  the  Freemen  wished  to  have  adopted  in  response  to 
the  demands  they  had  made,  it  has  often  been  appealed  to, 
particularly  in  times  of  uncertainty  and  excitement,  as  in  1685, 
1689,   and   1776-1780.     Accordingly,   the   Constitution   of  the 

1  The  above  paragraphs  in  regard  to  early  Massachusetts  experience  with  Direct  Legislation 
consist  of  almost  verbatim  excerpts  from  Referenda  in  Massachusetts,  16S9-1912,  an  unpublished 
paper  by  Dr.  Edward  M.  Hartwell,  Secretary  of  Statistics  Department.  Boston. 


188 


Commonwealth  since  1641,  except  during  the  Andros  and 
Provincial  periods,  has  embodied  the  "people's  law"  as  evoked 
by  referenda. 

THE  INTRODUCTION  OF  THE  STATE-WIDE  INITIATIVE 
AND  REFERENDUM. 

The  following  table  shows  the  dates  at  which  the  several 
States  adopted  the  Initiative  and  Referendum,  and  the  popular 
vote  for  and  against  the  constitution  or  amendment  by  which 
they  were  adopted.  It  should  be  noted  that  the  constitutional 
amendments  in  Utah  and  Idaho  and  partly  in  North  Dakota 
w^ere  not  self-executing;  their  becoming  effective  was  made  de- 
pendent upon  statutory  action  by  the  Legislatures.  At  the  1917 
session  the  Utah  Legislature  enacted  the  requisite  statute;  the 
Idaho  and  North  Dakota  Legislatures  have  taken  no  action. 


Progress  and  Status  of  the  State-wide  Initiative  and  Referendum.^ 

[Total  21  States,  February,  1917.] 


Popular  Vote  on  Amend- 

Date 

ment. 

of  Adop- 

State. 

tion. 

For. 

Against. 

1898 

South  Dakota,         ..... 

23,816 

16,483 

1900 

Utah 

19,219 

7,786 

1902 

Oregon, 

62,024 

5,668 

1905 

Nevada  [referendum  only], 

4,393 

792 

1906 

Montana, 

36,374 

6,616 

1907 

Oklahoma, 

180,333 

73,059 

1908 

Maine,  .... 

53,785 

24,543 

1908 

Missouri, 

177,615 

147,290 

1910 

Arkansas, 

91,367 

39,111 

1910 

Colorado, 

89,141 

28,696 

1911 

Arizona, 

12,187 

3,822 

1911 

New  Mexico  (referendum  only] 

, 

31,742 

13,399 

1911 

California, 

138,181 

44,850 

1912 

Nebraska, 

189,200 

15,315 

1912 

Washington,  . 

110,110 

43,905 

1912 

Idaho,    .... 

43,658 

13,490  2 

1912 

Ohio 

312,692 

231,312 

1912 

Nevada  (adds  initiative) , 

9,956 

1,027 

1913 

Michigan, 

219,388 

152,038 

1914 

North  Dakota, 

48,783 

19,964 

1914 

Mississippi,     . 

19,118 

8,718 

1915 

Maryland  (referendum  only). 

51,880 

24,659 

'  This  table  is  reprinted  from  "The  State-wide  Initiative  and  Referendum,"  by  Judson  King. 
(64th  Congress,  2d  Session,  Senate  Document  No.  736.) 

2  This  vote  was  on  the  Referendum;   the  Initiative  was  adopted  by  a  vote  of  38,918  to  15,195. 


189 


THE  INITIATIVE. 

Beginning  with  South  Dakota,  in  1898,  the  State-wide  Ini- 
tiative, in  one  form  or  another,  has  now  been  adopted  in  nine- 
teen States.  Under  the  Direct  Initiative  the  proposed  measure 
is  submitted  directly  to  the  electors.  Under  the  Indirect  Ini- 
tiative the  measure  goes  first  to  the  Legislature,  but  must  be 
submitted  to  the  electors  unless  enacted  without  change  by  the 
Legislature.  Their  form  of  Initiative,  and  the  percentage  or 
number  of  voters'  signatures  necessary'  to  invoke  it,  are  shown 
in  the  follow^ing  table: 


Year. 


State. 


Initiative  on  Statutes. 


Initiative  on  Constitu- 
tional Amendments. 


1898 
1900 

1902 
1906 
1907 
1908 
1908 

1908 
1910 
1910 
1911 
1911 

1912 
1912 


South  Dakota, 
Utah.i  . 

Oregon, 
Montana, 
Oklahoma, 
Maine,  . 
Michigan, 

Missouri, 

Arkansas, 

Colorado, 

Arizona, 

CaUfornia, 

Idaho,    . 
Ohio,     . 


1912      Nebraska, 
1912      Nevada, 
1912     Washington, 


1913 
1914 
1914 


Michigan, 
Mississippi, 
North  Dakota 


5  per  cent,  indirect. 
5    per    cent,    indirect, 
10  per  cent,  direct. 
8  per  cent,  direct. 
8  per  cent,  direct. 
8  per  cent,  direct. 
12,000,  indirect. 
(See  1913.) 

8  per  cent,  direct.  ^ 
8  per  cent,  direct. 
8  per  cent,  direct. 
10  per  cent,  direct. 
5  per  cent,  indirect,  8 
per  cent,  direct. 

—  3  — 

3  per  cent,  indirect,  6 
per  cent,  direct. 

10  per  cent,  direct. 

10  per  cent,  indirect. 

10  per  cent,  direct  and 
indirect. 

8  per  cent,  indirect. 

7,500,  direct. 

10  per  cent,  indirect. 


None. 

5  per  cent,  indirect, 

10  per  cent,  direct. 
8  per  cent,  direct. 
None. 

15  per  cent,  direct. 
None. 
20  per  cent,  indirect. 

(See  1913.) 
8  per  cent,  direct. ' 
8  per  cent,  direct. 
8  per  cent,  direct. 
15  per  cent,  direct. 
8  per  cent,  direct. 

_3  — 

10  per  cent,  direct. 

15  per  cent,  direct. 
10  per  cent,  indirect. 
None. 

10  per  cent,  direct. 

7,500,  direct. 

25  per  cent,  indirect. 


1  The  necessary  legislation  for  carrying  this  provision  into  effect  was  not  enacted  until  1917. 

2  The  masimum  named  in  the  Constitution.    Five  per  cent  has  been  adopted  by  statute. 
'  Details  are  to  be  supplied  by  the  Legislature,  which  has  taken  no  action. 


The  Initiative  on  Constitutional  Amendments. 
The  Direct  Initiative  is  now  in  use  by  ten  States  in  applica- 
tion to  constitutional  amendments.  When  once  the  proposed 
amendment  has  been  filed,  backed  by  a  petition  containing  the 
requisite  number  of  signatures,  it  must  be  submitted  to  the 
voters  at  the  polls  for  the  final  verdict.  The  number  of  sig- 
natures in  all  of  the  States  is  gauged  as  a  percentage,  usually 
of  the  "legal  voters",  —  a  higher  percentage  being  required  in 


190 

most  States  in  the  case  of  amendments  to  the  Constitution  than 
in  the  case  of  ordinary  statutes.  Missouri  requires  but  5  per 
cent;  Arkansas,  California,  Colorado  and  Oregon  insist  upon 
8  per  cent;  Ohio  and  Michigan  call  for  10  per  cent;  while 
Arizona,  Nebraska  and  Oklahoma  exact  15  per  cent.  At  the 
last  general  election  in  Massachusetts,  1916,  the  number  of 
registered  voters  in  the  Commonwealth  was  650,882,  of  whom 
557,499  (or  85.5  per  cent)  voted  for  the  candidates  for  Governor. 
If  in  Massachusetts  the  above  percentages  should  be  required 
in  securing  signatures  upon  Initiative  petitions  (reckoning  the 
percentage  upon  the  number  of  registered  voters),  the  results 
would  be  as  follows:  5  per  cent,  32,544;  8  per  cent,  52,070; 
10  per  cent,  65,088;  15  per  cent,  97,632. 

There  is  variety  in  the  requirements  as  to  the  interval  which 
must  come  between  the  filing  of  the  petition  and  the  date  of  the 
election  at  which  the  initiated  amendment  is  to  be  voted  upon, 
—  the  next  regular  general  election,  unless  some  special  election 
is  called  by  the  Legislature  (Arizona)  or  by  the  Governor 
(California).  In  Nevada  the  petition  must  have  been  filed  not 
less  than  thirty  days  before  a  regular  session  of  the  Legislature. 
The  other  States  allow  a  longer  interval  for  deliberation. 
(California  and  Ohio,  three  months;  Nebraska  and  Michigan, 
four  months;  and  North  Dakota,  six  months.) 

For  the  adoption  of  an  amendment  thus  initiated  a  majority 
of  those  voting  thereon  is  all  that  is  required  by  Arizona, 
Michigan,  Nevada  and  Ohio.  North  Dakota  and  Oklahoma 
insist  upon  a  majority  of  the  votes  cast  at  that  election. 

Nevada  and  North  Dakota  make  use  of  the  Indirect  Ini- 
tiative in  the  case  of  constitutional  amendments.  In  Nevada 
the  procedure  does  not  differ  materially  from  that  applied  to 
ordinary  statutes.  In  North  Dakota,  while  the  initiated  meas- 
ure is  brought  from  the  petitioners  directly  to  the  people,  it  is 
insisted  that  after  a  proposed  amendment  has  been  approved 
by  a  majority  of  legal  votes  cast  at  a  general  election,  it  shall 
then  be  referred  to  the  next  Legislature;  if  a  majority  of  all 
the  members  elected  to  each  house  shall  agree  upon  it,  the 
amendment  becomes  a  part  of  the  Constitution,  but  if  it  fails 
to  secure  such  approval  from  the  Legislature,  it  must  again  be 
referred  to  the  electors  at  the  next  general  election;  and  if  it 
then  (for  the  second  time)  receives  a  majority  of  all  the  legal 


191 


votes  cast  at  that  election,  it  at  once  becomes  a  part  of  the 
Constitution.  In  this  State,  no  amendment  proposed  by  ini- 
tiative petitioti  and  failing  of  adoption  shall  be  considered 
again  until  the  expiration  of  six  years. 

In  the  constitutions  of  several  States  the  initiative  process 
is  presented  simply  as  an  optional  method  of  amending.  Ne- 
braska explicitly  states  that  the  initiative  process  of  proposing 
and  adopting  constitutional  amendments  shall  be  supplementary 
to  and  in  no  case  construed  to  be  in  conflict  with  the  method 
earlier  prescribed  for  amending  her  Constitution.  In  fact  the 
two  methods  are  being  employed  side  by  side,  at  the  same  time. 
The  following  table  shows  the  number  of  amendments  which 
had  been  proposed  by  the  two  processes  in  the  States  which 
still  employ  both,  which  were  voted  on  at  the  general  elections 
of  1914  and  1916: 


Initiative  v.  Legislative  Constitutional  Amendments. 


1914. 

1916. 

State. 

Character  of 
Amendment. 

1 

ri 
<v 

ft 
o 

•< 

13 
1 

3 

o 

13 

ft 
< 

Arizona, 
Arkansas,     . 
California,   . 
Colorado,     . 
Michigan,    . 
Missouri,     . 
Nebraska,    . 
Nevada, 
Ohio, 

Oklahoma,  . 
Oregon, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

Initiative, 
Legislative, 

2 
3 

1 
2 

8 
22 

8 
3 

1 
3 

3 

8 

T 
3 

2 

4 

4 

13 

8 

2 

1 
1 

3 

15 

2 

1 

1 

3 

2 
1 

2 
2 

3 

1 

5 

7 

6 

2 

1 
2 

3 

8 

1 

3 

4 

11 
6 

5 

2 

1 
2 

4 
2 

3 

1 

2 
1 

2 

2 

3' 

11 

2 

9 

4 
3 

1 

2 
1 

1 

1 

1 
1 

2 

3 

o 

4 
2 

1 
3 

2 

2 
0 
2 

1 

3» 

1» 

2 

9 

1 
1 

'  1915. 


192 


The    Ixitiative    on    Ordinary    Laws,    or    the    Statutory 

Initiative. 

In  substantially  identical  words  the  constitutions  of  more 
than  a  dozen  States  assert  that  the  power  is  reserved  to  the 
people  to  propose  laws  and  to  enact  the  same  at  the  polls,  in- 
dependent of  tjie  Legislature.  Twelve  States  make  the  Initia- 
tive applicable  both  to  laws  and  constitutional  amendments, 
while  six  apply  it  only  to  ordinary  laws.  (Idaho,  Maine,  Mon- 
tana, South  Dakota,  Utah  and  Washington.)  In  but  four  of 
the  States  are  substantial  limitations  placed  upon  the  Initia- 
tive's scope.  In  Michigan  and  Nebraska  the  same  limitations 
prescribed  by  the  Constitution  as  to  the  powers  of  the  Legis- 
lature are  held  to  apply  to  the  powers  of  the  people  in  enacting 
laws.  In  Montana  the  Initiative  is  declared  not  to  be  applicable 
to  measures  relating  to  the  appropriation  of  money,  to  the  sub- 
mission of  constitutional  amendments,  and  to  local  and  special 
laws  as  enumerated  in  the  Constitution. 

The  Indirect  Statutory  Initiative. 

In  the  eight  States  which  have  the  indirect  statutory  Ini- 
tiative, the  percentage  or  number  of  petition  signatures  re- 
quired in  general  ranges  somewhat  lower  than  in  the  States 
where  the  initiated  measures  are  to  be  transmitted  directly  to 
the  voters,  without  passing  through  the  hands  of  the  Legis- 
lature. The  requirements  are  as  follows:  Ohio,  3  per  cent; 
California,  5  per  cent;  South  Dakota,  not  more  than  5  per  cent; 
Michigan,  at  least  8  per  cent;  North  Dakota,  at  least  10  per 
cent;  Nevada,  not  more  than  10  per  cent;  Washington,  10  per 
cent,  but  in  no  case  more  than  50,000  of  legal  voters;  Maine, 
not  less  than  12,000  electors.  North  Dakota  stipulates  that 
the  signatures  of  at  least  10  per  cent  of  the  legal  voters  be 
secured  in  a  majority  of  the  counties  of  the  State,  and  Ohio 
requires  that  each  of  one-half  of  the  counties  shall  furnish  as 
signers  1|  per  cent  of  its  voters.  Four  States  (Michigan,  Ohio, 
California  and  Washington)  require  that  the  initiative  petition 
be  filed  at  least  ten  days  before  the  commencement  of  the  ses- 
sion at  which  it  is  to  be  acted  upon;  Nevada  and  North  Dakota 
require  an  interval  of  at  least  tliirty  days.    Maine,  on  the  other 


193 

hand,  permits  the  filing  of  the  petition  at  least  thirty  days 
before  the  close  of  the  session. 

The  States  differ  greatly  in  the  part  which  they  assign  to  the 
legislatures  in  connection  with  the  Initiative.  South  Dakota, 
the  first  State  to  introduce  the  Initiative,  requires  that  the 
Legislature  "shall  enact  and  submit  to  a  vote  of  the  electors  of 
the  State"  any  measure  which  has  been  duly  proposed  by  ini- 
tiative petition;  no  discretion  nor  option  is  allowed.^  In  three 
States  (Nevada,  North  Dakota  and  Washington)  precedence 
is  given  to  initiated  measures  over  all  other  measures  before  the 
Legislature,  with  the  exception  of  appropriation  bills.  Six 
States  (California,  Maine,  Michigan,  Nevada,  North  Dakota 
and  Washington)  require  that  the  initiative  measures  shall  be 
enacted  or  rejected  without  amendment  by  the  Legislature. 
Washington  stipulates  that  the  enactment  or  rejection  must  be 
accomplished  before  the  end  of  the  regular  session;  Ohio  makes 
the  time  limit  four  months,  while  four  States  allow  but  forty 
days  for  such  action.  (Michigan,  California,  Nevada  and 
North  Dakota.  In  the  last  three  States  the  Legislature's  session 
is  limited  to  sixty  days.) 

Merely  because  a  measure  has  been  brought  before  the  Legis- 
lature by  initiative  petition  signed  by  a  certain  percentage  of 
the  legal  votes,  and  has  been  enacted  by  the  Legislature,  it  is 
not  to  be  assumed  that  the  measure  is  without  fault,  or  that  it 
embodies  a  determined  public  opinion.  Hence  seven  States 
explicitly  provide  that  any  initiative  measure  thus  enacted  shall 
still  be  subject  to  the  Referendum.  (California,  Maine,  Michi- 
gan, North  Dakota,  Washington,  Nevada  and  Ohio.)  In  two 
States  (North  Dakota  and  W^ashington)  the  Legislature  itself, 
after  having  enacted  the  measure,  may  refer  it  to  the  electors 
for  their  verdict.  In  Maine  the  Governor  may  veto  an  initiative 
measure,  and  if  his  veto  is  not  overridden  by  the  Legislature, 
the  measure  must  be  referred  to  the  people  at  the  next  general 
election.  If  an  initiative  measure  is  rejected,  or  if  no  action  is 
taken  upon  it  within  the  prescribed  time,  six  States  (California, 
Maine,  Michigan,  Nevada,  North  Dakota  and  Washington) 
require  that  the  Secretary  of  State  submit  the  measure  to  the 

'  In  1908  a  primary  election  act  was  initiated  by  the  requisite  number  of  petitioners  but  the 
Senate  refused  to  obey  the  mandate  of  the  Initiative  and  the  bill  was  not  submitted  to  the  voters. 


194 

people.  Ohio  makes  such  submission  conditional  upon  the 
filing  of  a  supplementary  petition  with  signatures  of  three  per 
cent  of  the  electors  in  addition  to  the  number  on  the  original 
petition. 

In  their  use  of  the  Indirect  Statutory  Initiative,  however, 
six  States  accord  to  the  Legislature  a  far  more  important  role 
than  merely  to  hand  on  to  the  voters  the  petitioners'  measure, 
with  or  without  the  Legislature's  approval.  The  Initiative 
affords  a  method  of  securing  the  enactment  or  rejection  of  some 
proposal  which  in  the  opinion  of  the  petitioners  the  Legislature 
would  otherwise  ignore  or  defeat.  But  the  procedure  outlined 
above  gives  no  assurance,  in  itself,  that  the  initiative  measure 
will  be  well  drafted,  nor  does  it  present  any  opportunity  for 
amendment  or  modification,  after  once  the  proposal  has  been 
phrased  upon  the  petition  blanks.  The  two  functions  of  sub- 
jecting the  merits  of  a  proposal  to  searching  investigation  and 
debate  and  of  amending  it  into  precise  and  effective  form  are 
the  very  functions  for  w^hich  the  procedure  of  a  legislative  as- 
sembly is  well  adapted,  provided  the  assembly  is  so  manned 
and  organized  as  to  put  its  best  efforts  upon  the  task.  It  is  with 
the  intention  of  securing  the  Legislature's  co-operation  along 
these  lines  that  six  States  (Maine,  California,  Washington, 
Michigan,  Nevada  and  North  Dakota),  in  substantially  iden- 
tical language,  provide  that  any  initiative  measure  not  enacted 
by  the  Legislature  shall  be  submitted  to  the  electors  together 
with  any  amended  form,  substitute  or  recommendation  of  the 
Legislature,  and  in  such  manner  that  the  people  can  choose 
between  the  competing  measures  or  reject  both.  Theoretically, 
this  opportunity  should  put  the  Legislature  upon  its  mettle, 
and  incite  that  representative  body,  by  the  thoroughness  of  its 
investigation  and  by  the  expertness  of  its  draftsmanship,  to 
justify  itself  in  the  eyes  of  the  electors  by  submitting  for  their 
approval  a  model  measure.  In  the  six  States  mentioned,  the 
introduction  of  the  Initiative  is  of  so  recent  a  date  that  as  yet 
no  experience  is  available  for  making  this  direct  comparison  as 
to  the  quality  and  form  of  initiative  and  legislative  measures. 

With  the  object  of  retaining  the  advantages  gained  from 
severe  criticism,  a  novel  form  of  the  Initiative  has  been  set 
forth  in   a  proposed  constitutional  amendment  in   Wisconsin. 


195 

It  provided:  "A  proposed  law  shall  be  recited  in  full  in  the 
petition,  and  shall  consist  of  a  bill  which  has  been  introduced 
in  the  Legislature  during  the  first  thirty  legislative  days  of  the 
session,  as  so  introduced;  or,  at  the  option  of  the  petitioners, 
there  may  be  incorporated  in  said  bill  any  amendment  or 
amendments  introduced  in  the  Legislature."  Inasmuch  as  any 
member  of  the  Legislature,  under  this  proposed  law,  would  have 
the  right  to  present  any  bill  or  amendment,  this  would  not  be 
likely  seriously  to  impede  the  securing  of  needed  legislation, 
but  it  would  assure  an  opportunity  for  expert  study  of  a  pro- 
posal and  for  such  searching  criticism  as  led,  for  example,  to  the 
complete  redrafting  twenty  different  times  of  the  Wisconsin 
railroad  commission  bill. 

The  Direct  Statutory  Initiative. 
In  nine  States  measures  proposed  by  initiative  petition  may 
be  placed  before  the  voters,  without  any  action  having  been 
taken  upon  them  by  the  Legislature.  Five  of  these  States 
(Arkansas,  Colorado,  Oregon,  Missouri  and  Montana)  require 
that  the  petitions  shall  be  signed  by  eight  per  cent  of  the  State's 
legal  voters.  California  and  Oklahoma  and  some  of  the  other 
States  use  the  aggregate  vote  cast  for  all  candidates  for  the 
highest  State  office  at  the  preceding  election  as  the  basis  for 
computing  these  percentages.  Arizona,  Nebraska  and  Wash- 
ington require  the  signatures  of  ten  per  cent  of  the  qualified 
electors,  and  Missouri,  Montana  and  Nebraska  each  insist  that 
the  petitioners  shall  be  so  distributed  as  to  represent  a  demand 
for  the  measure  in  a  large  proportion  of  the  counties  or  dis- 
tricts in  the  State.  Washington  sets  a  fixed  maximum  require- 
ment, —  "in  no  case  more  than  50,000  of  legal  voters." 

Majority  Required  for  the  Adoption  of  a  Measure. 
In  most  of  the  States  using  the  Initiative  in  one  form  or 
another,  the  proposed  measure  is  adopted  by  a  mere  majority 
of  those  voting  thereon.  Nebraska  insists  that  such  majority 
shall  equal  thirty-five  per  cent  of  the  total  vote  cast  at  that 
election.  Oklahoma  requires  approval  by  a  majority  of  "all 
votes  cast  in  such  election."  As  a  result,  in  the  single  election 
of  November  3,  1914,  when  four  initiative  constitutional  amend- 


196 

ments  were  placed  before  the  people,  although  they  were  ap- 
proved by  majorities  ranging  from  22,894  to  60,555,  not  one  of 
them  was  adopted;  in  one  case  the  favoring  vote  was  nearly 
2  to  1  (117,675  to  57,120).  In  Idaho  the  explicit  requirement 
of  her  Constitution  —  not  yet  made  effective  by  statute  —  is 
a  majority  of  the  aggregate  vote  cast  for  the  candidates  for 
Governor  at  the  general  election. 

Amendment   or   Repeal   of  Initiative    Measures   adopted   by   the 

Electors. 

What  power  shall  the  Legislature  have  to  amend  or  repeal 
a  law  which  has  been  enacted  not  by  the  Legislature  but  by 
the  electors?  Nevada  merely  gives  to  such  laws  three  years' 
immunity,  by  providing  that  during  that  period  they  shall  not 
be  annulled,  set  aside  or  repealed.  Both  California  and  Michi- 
gan provide  that  no  act  or  law  adopted  under  the  Initiative 
shall  be  amended  (or  repealed,  Michigan  adds)  except  by  vote 
of  the  electors,  unless  otherwise  provided  in  such  initiative 
measure;  but  in  Michigan  the  Legislature  is  authorized  to  pro- 
pose amendments,  alterations  or  repeals  to  the  people. 

Resubmission  of  Rejected  Measures. 

To  prevent  the  wearing  out  of  the  voters'  patience  by  the 
importunity  of  a  small  group  of  persistent  initiative  petition- 
signers,  Nebraska  provides  that  the  same  measure  either  in 
form  or  in  essential  substance  shall  not  be  submitted  to  the 
people  by  initiative  petition  (either  affirmatively  or  negatively) 
oftener  than  once  in  three  years. 

THE  REFERENDUM. 

The  Compulsory  Referendum  on  Constitutional  Amend- 
ments. 

This  might  almost  be  said  to  be  a  Massachusetts  invention. 
As  has  been  shown,  the  venerable  Body  of  Liberties,  1641,  was 
not  put  into  effect  until  it  had  been  "sent  forth  among  the 
Freemen"  and  their  approval  secured.  In  the  following  cen- 
tury, not  infrequently  questions  of  moment  were  referred  to  the 
people.     During   the   years   which   immediately   preceded   the 


197 

Revolution  these  appeals  became  numerous.  In  the  five  years 
1776  to  1780,  seven  times  grave  questions  were  submitted  to  a 
vote  by  the  electors  of  the  whole  Commonwealth.  Thus  in 
1776  Massachusetts  men  were  called  upon  to  answer  the  ques- 
tion: "Do  you  favor  a  Declaration  of  Independence?"  and 
in  1778:  "Do  you  favor  a  Confederation  of  the  Colonies?" 
In  1776,  1777  and  1779  they  voted  upon  several  proposals  to 
hold  constitutional  conventions.  Finally,  it  was  by  a  genuine 
Referendum  that  the  proposed  Constitution  of  1778  was  re- 
jected, and  by  another  Referendum  that  the  Constitution  of 
1780  was  adopted.  Thus  IVIassachusetts  "gave  to  the  world 
the  first  popularly  ratified  State  Constitution." 

Thus  came  into  being  an  instrument  which  has  been  the  subject  of 
ahnost  universal  encomium.  Borgeaud  caUs  it  "  the  most  perfect  ex- 
pression of  the  American  theory,  as  understood  at  the  close  of  the  Rev- 
olution". Though  not  the  earliest  of  the  American  Constitutions,  it  is 
to-daj^  the  oldest.  While  all  similar  instruments  of  its  time  have  been 
swept  away  and  superseded  by  later  Constitutions,  it  still  survives,  with 
prestige  unimpaired,  supplemented  only  by  amendments  which  time  has 
made  necessary.  .  .  This  venerable  charter  has  been  a  model,  both  in 
form  and  substance,  for  all  subsequent  constitution  makers.' 

The  precedent  proved  attractive.  Ratification  by  vote  of 
the  people  soon  became  the  established  rule,  and  to-day  there 
are  few  exceptions  of  State  constitutions  or  amendments  thereto 
which  have  not  derived  their  authority  from  the  vote  of  the 
people. 

Including  the  vote  upon  the  adoption  of  this  Constitution  as 
the  first,  there  have  been  seventy-three  State-wide  referenda 
in  this  Commonwealth  from  1780  to  1917.  They  have  been 
of  different  kinds:  Five  of  them  have  been  votes  upon  propos- 
als for  the  holding  of  a  constitutional  convention  (1795,  1820, 
1851,  1852,  1916).  One  was  unique,  —  giving  to  the  men  and 
women  of  the  Commonwealth  an  opportunity  to  vote  upon 
"the  expediency  of  granting  municipal  suffrage  to  women" 
(1895).  It  has  been  by  the  voters'  sanction  that  forty-four 
amendments  have  been  added  to  the  Constitution,  and  by  the 
people's  will  that  twenty  other  proposed  amendments  have 
been  rejected. 

1  C.  S.  Lobingier,  The  People's  Law,  176,  177. 


198 

So  thoroughly  famihar  is  this  exercise  of  the  Compulsory 
Referendum  in  Massachusetts,  and  so  similar  is  the  procedure 
under  it  in  nearly  all  the  States  that  there  is  here  no  need  of 
its  extended  discussion.  But  these  many  State-wide  votings  in 
Massachusetts  illustrate  clearly  several  characteristic  workings 
of  the  Compulsory  Referendum.  They  show  the  tendency  to 
vote  "all  one  way"  or  in  blocks  on  a  series  of  proposals.  Of 
the  fourteen  proposed  amendments  which  embodied  the  results 
of  the  Convention's  labors  in  1820,  nine  were  adopted,  while 
five  were  rejected.  Of  the  eight  amendments  proposed  in  1853 
all  were  rejected.  These  ballotings  show  a  wide  variation  in 
the  vote  which  they  called  forth.  Thus,  in  the  excitement 
which  attended  the  submission  of  the  amendments  proposed  by 
the  Convention  of  1853,  the  vote  on  those  eight  amendments 
ranged  from  100.8  to  101.8  per  cent  of  the  vote  cast  for  Gov- 
ernor that  same  day,  and  all  the  measures  were  rejected.  On 
the  other  hand,  at  the  very  next  trial  of  the  Referendum,  May 
23,  1855,  gauged  by  a  like  standard,  the  vote  on  the  six  meas- 
ures submitted  ranged  from  14.4  to  14.7  per  cent,  and  every 
one  of  the  six  measures  was  adopted.  In  fact,  of  the  forty-four 
amendments  which  have  been  adopted,  sixteen  have  been  rati- 
fied at  elections  where  not  30  per  cent  of  those  who  voted  for 
Governor  had  voted  for  or  against  the  amendments.  The 
climax  was  reached  in  1860  when  two  amendments  ("To  pro- 
vide a  method  for  filling  vacancies  in  the  Senate;"  "To  provide 
a  method  for  filling  vacancies  in  the  Council")  were  added  to 
the  Constitution  of  this  Commonwealth  when  the  votes  for  and 
against  each  of  them  aggregated  only  3.3  per  cent  of  the  num- 
ber of  votes  cast  for  Governor  that  day,  —  the  amendments 
being  actually  made  a  part  of  the  Constitution  by  a  vote- 
percentage  smaller  by  a  third  than  that  required  at  present  in 
any  State  of  the  Union  for  the  number  of  signatures  to  a  Ref- 
erendum petition.  Obviously  the  voters  considered  that  these 
amendments  dealt  with  mere  mechanical  details  of  govern- 
mental machinery  which  concerned  them  but  little.  Similar 
testimony  comes  from  many  States  as  to  the  working  of  the 
Compulsory  Referendum  on  Constitutional  amendments.  Par- 
ticularly in  States  where  scant  attention  is  given  to  maintaining 
any  distinction  in  content  between  the  Constitution  and  the 


199 

body  of  the  statutes,  or  where  the  Legislature  is  unduly  ham- 
pered, the  constitutional  amendments  are  often  of  merely  local 
and  trivial  interest.  Thus  at  the  South  Carolina  election  of 
1914,  of  the  eleven  constitutional  amendments  voted  upon  all 
over  the  State  three  related  to  the  bonded  indebtedness  of 
individual  cities,  towns  or  school  districts,  five  empowered 
named  towns  to  assess  abutting  property  for  permanent  im- 
provements, and  the  rest  were  of  hardly  more  general  or  mo- 
mentous concern.  It  not  infrequently  happens  that  proposed 
amendments  of  doubtful  merit  are  allowed  to  slip  through  by 
the  Legislature,  its  members  being  willing  to  take  whatever 
credit  may  result  from  voting  for  them,  while  leaving  to  the 
electorate  or  the  courts  the  question  whether  the  measures 
shall  stand  or  fall.  The  evidence  is  entirely  conclusive  that  the 
vote  on  these  Compulsory  Referenda  is  materially  lower  than 
on  measur-es  submitted  by  the  Initiative  or  by  the  Optional 
Referendum.  The  signers  of  initiative  and  referendum  peti- 
tions, by  putting  their  names  to  those  documents,  give  evidence 
of  a  considerable  popular  interest  if  not  of  a  pronounced  public 
opinion  as  to  the  proposals,  whereas  in  the  case  of  the  Com- 
pulsory Referendum  on  constitutional  amendments  there  is  no 
basis  for  such  a  presumption. 

It  deserves  consideration,  therefore,  whether  the  Compulsory 
Referendum  as  to  constitutional  amendments  should  not  be 
given  up,  at  any  rate  except  in  regard  to  a  limited  range  of 
important  topics.  If  it  were  required  that  proposed  amend- 
ments should  be  approved  by  exceptional  majorities  in  the 
Legislature  (as  at  present  in  Massachusetts)  and  then  be  sub- 
ject to  the  Optional  Referendum,  on  petition  of  a  stipulated 
number  of  qualified  voters,  it  can  hardly  be  doubted  that  in 
most  States,  on  the  one  hand,  constitutional  amendments  would 
receive  more  searching  criticism  than  is  now  given  them,  while 
on  the  other,  the  ballot  would  be  rid  of  a  considerable  number 
of. proposals  in  which  the  voters  can  be  expected  to  take  but 
the  slightest  interest. 


200 


The  Optional  Referendum. 

In  contrast  with  the  Compulsory  Referendum,  the  Optional 
Referendum  brings  a  proposal  before  the  electors  not  by  the 
mandate  of  law  but  by  some  one's  voluntary  choice.  In  the 
first  place,  this  choice  may  be  exercised  by  the  Legislature 
which  has  enacted  the  measure  in  question. 

The  Legislative  Referendum. 

The  people's  verdict  may  be  sought  by  the  Legislature  as  a 
reply  to  some  question  of  public  policy,  as  when  in  1895  the 
General  Court  called  upon  the  voters  to  answer  the  question 
as  to  the  expediency  of  granting  municipal  suffrage  to  women. 

Many  years  ago  the  Legislatures  in  one  State  after  another 
made  the  experiment  of  submitting  to  the  electors  not  such  an 
exceptional  question,  but  an  actual  law,  enacted  by  the  ordinary 
procedure,  but  to  which  the  Legislature  had  "attached  a  ref- 
erendum," —  i.e.,  made  its  going  into  effect  contingent  upon  its 
receiving  a  majority  vote  of  approval  from  the  electors.  The 
motives  for  such  action  were  diverse:  in  some  cases,  a  politic 
wish  to  shift  responsibility  in  a  difficult  situation;  in  others  a 
democratic  deference  to  the  unknown  will  of  the  majority;  in 
others,  uncertainty  as  to  how  the  interests  of  the  public  would 
be  affected  by  the  measure,  or  a  desire  to  secure  for  it  the 
backing  of  a  declared  public  opinion. 

Such  action  by  the  Legislatures  was  promptly  challenged  as 
an  unwarranted  delegating  of  legislative  power.  Courts  in 
Massachusetts,  New  York  and  several  other  States  gave  de- 
cisions to  that  effect.  Vermont  and  Wisconsin  courts,  on  the 
other  hand,  held  that  such  references  were  constitutional. 
Dicta  may  be  cited  from  a  dozen  States  —  a  large  proportion 
of  them  in  the  South  — •  holding  that  view.  In  spite  of  the 
clash  of  judicial  opinion  and  of  constitutional  declaration  — 
for  such  reference  is  expressly  prohibited  by  the  Constitutions 
of  Indiana  and  Kentucky,  and  expressly  permitted  by  the 
Constitutions  of  Arizona,  Arkansas,  Colorado,  INIaine,  JNIichi- 
gan,  Missouri,  Montana,  Oklahoma,  Oregon  and  Washington 
{Equity,  XVI,  24)  —  the  practice  became  more  common. 

In    1913    it    secured    formal    recognition    in    Massachusetts. 


201 


Article  XLII  of  the  Amendments  provides:  "Full  power  and 
authority  are  hereby  given  and  granted  to  the  General  Court 
to  refer  to  the  people  for  their  rejection  or  approval  at  the  polls 
any  act  or  resolve  of  the  General  Court  or  any  part  or  parts 
thereof.  Such  reference  shall  be  by  a  majority  yea  and  nay 
vote  of  all  members  of  each  house  present  and  voting,"  etc. 

The  measures  which  the  General  Court,  under  this  warrant, 
has  referred  to  the  people  and  the  result  of  their  votings  are  as 
follows : 


Election  of  November  3,  1914- 

Yes. 

No. 

Majority 
for. 

Per 

Cent  Total 

Vote. 

1.  An  Act  to  make   Saturday  a  half 

holiday  for  laborers  employed  by 
the  State,            .... 

2.  To  abolish  the  enrollment  of  mem- 

bers of  political  parties, 

248,987 
253,716 

128,251 
86,834 

120,736 
166,882 

82 
72 

Votes  for  Governor,  458,204. 


Election  of  November,?, 

1016. 

Yes. 

No. 

Majority 
for. 

Per 
Cent  Total 

^■ote. 

1.  An  Act  making  New  Year's  Day  a 

legal  holiday,      .... 

312,678 

113,142 

199,536 

80 

2.  An  Act  to  prevent  the  voters  of  one 

political  party  from  voting  in  the 

primarieo     of     another     political 

party 

209,624 

150,050 

59,574 

68 

3.  An  Act  to  ascertain  and  carry  out  the 

will  of  the  people  relative  to  the 

calling  and  holding  of  a  Constitu- 

tional Convention, 

217,293 

120,979 

97,314 

64 

Votes  for  Governor,  526,421. 


The  Statutory  Referendum  {Optional  Referendum  by  Petition). 

The  second  form  of  Optional  Referendum  is  that  in  which 
it  is  the  choice  of  a  certain  number  of  qualified  voters  that 
determines  that  an  act  of  the  Legislature  shall  be  submitted  to 


202 


the  electors,  for  their  approval  or  rejection  by  majority  vote. 
It  is  over  this  form  of  Referendum  that  present-day  opinion 
and  practice,  in  the  several  States,  most  widely  differ. 

States  have  brought  the  Statutory  Referendum  into  their 
constitutions  in  the  following  order: 


Year. 

State. 

Petition  Signers. 

1898, 

South  Dakota, 

5  per  cent. 

1900, 

, 

Utah,      . 

10  per  cent. 

1902, 

Oregon,  . 

5  per  cent. 

1905, 

Nevada, 

10  per  cent. 

1906, 

Montana, 

5  per  cent. 

1907, 

Oklahoma, 

5  per  cent. 

1908, 

Maine,    . 

10,000  voters. 

1908, 

Missouri, 

5  per  cent. 

1910, 

Arkansas, 

5  per  cent. 

1910, 

Colorado, 

5  per  cent. 

1911, 

Arizona, 

5  per  cent. 

1911, 

New  Mexico, 

10  per  cent. 

1911, 

California, 

5  per  cent. 

1912, 

Ohio, 

6  per  cent. 

1912, 

Nebraska, 

10  per  cent. 

1912, 

Washington, 

6  per  cent. 

1912, 
1913, 

Idaho,     . 
Michigan, 

Not  yet  determined. 
5  per  cent. 

1914, 

North  Dakota, 

10  per  cent. 

1915, 

Maryland, 

10,000  voters. 

The  Statutory  Referendum  first  found  its  way  into  an  Amer- 
ican State  constitution  in  South  Dakota,  1898,  in  the  declara- 
tion that  the  right  was  reserved  to  the  people  "to  require  that 
laws  which  the  Legislature  may  have  enacted  shall  be  submitted 
to  the  vote  of  the  electors  before  going  into  effect."  In  Oregon, 
the  State  which  has  used  this  form  of  the  Referendum  most 
freely,  its  enunciation  was  as  follows:  "The  power  is  reserved 
to  the  people  at  their  own  option  to  approve  or  reject  at  the 
polls  any  act  of  the  Legislature,  except  .  .  ."  etc.  The  most 
widely  adopted  formula  reserves  "the  power  to  approve  or 
reject  at  the  polls  any  act,  item,  section  or  part  of  a  bill,  act 
or  law  passed  by  the  Legislature,  except  .  .  ."  etc. 

There  is  wide  diversity  as  to  the  scope  of  the  Referendum's 
applicability.  California,  Idaho  and  Nevada  declare  it  to  be 
applicable  to  any  law.  Fifteen  States  make  it  applicable  to 
any  measures  except  those  specifically  prohibited.  A  dozen 
States  concur  in  declaring  exempt  from  Referendum  petition 


203 

"laws  necessary  for  the  immediate  preservation  of  public  peace, 
health  or  safety."  In  many  States  laws  for  the  support  of  the 
State  government,  or  its  various  institutions,  including  the 
public  schools,  are  excluded  from  the  Referendum's  test.  IMaine 
makes  elaborate  provision  to  prevent  the  trammeling  of  the 
Legislature  by  Referenda  on  resolutions  concerning  its  pro- 
cedure, etc. 

In  order  that  ample  opportunity  may  be  afforded  for  the 
filing  of  Referendum  petitions,  it  is  ordinarily  provided  that  no 
law  (with  the  exception  of  those  classes  to  which  the  Referen- 
dum is  not  applicable,  as  cited  above,  or  of  "emergency  meas- 
ures," to  be  discussed  later)  shall  go  into  effect  for  a  cer- 
tain period  after  its  passage.  In  the  great  majority  of  the 
States  which  have  adopted  the  Referendum,  this  interval  is 
ninety  days  from  the  end  of  the  legislative  session  in  which  the 
act  was  passed.  Utah  prescribes  only  sixty  days.  Ohio  pro- 
vides that  the  ninety  days  shall  run  not  from  the  end  of  the 
session  but  from  the  time  when  the  Governor  files  the  approved 
law. 

Emergency  Measures.  —  In  drafting  a  Constitution's  sections 
relating  to  the  Referendum,  the  clause  relating  to  emergency 
measures  presents  a  difficult  problem.  Unless  the  power  is 
given  to  the  Legislature  to  forestall  the  use  of  the  Referendum 
in  time  of  stress,  there  is  danger  that  the  public  interest  may 
be  seriously  injured  through  the  delay  of  needed  legislation  by 
the  filing  of  a  referendum  petition  against  the  measure  in  ques- 
tion. On  the  other  hand,  there  is  a  real  danger  that  a  Legis- 
lature, if  given  any  discretion  as  to  the  forestalling  of  a  Ref- 
erendum, may  abuse  that  power  by  alleging  an  emergency,  in 
the  case  of  many  a  measure,  where  no  real  emergency  exists. 
In  Oregon  this  abuse  is  said  to  have  led  to  the  Governor's 
vetoing  several  measures  to  which  the  Legislature  had  applied 
an  emergency  clause.  The  record  of  the  South  Dakota  Legis- 
lature in  this  matter  is  highly  suggestive.^ 

'  In  1915,  however,  the  Supreme  Court  of  South  Dakota  held  in  State  ex  rel.  Richards  t.  Whis- 
man,  36  S.  D.  260,  that  the  emergency  clause  cannot  defeat  a  Referendum  unless  an  actual 
emergency,  as  defined  by  the  Constitution,  exists.  A  falling  off  in  the  number  of  emergencies 
seems  to  have  set  in. 


204 


Year. 

Total  Acts 
passed. 

Passed  with 

Emergency 

Clause. 

1899, 
1901. 
1903, 
1905, 
1907, 
1909, 
1911, 
1913, 
1915, 
1916, 
1917, 

126 
185 
223 
173 
249 
295 
265 
371 
307 

31 
376 

65 

82 
107 

87 
100 

96 

122 

151 

129 

2 

98 

2,573 

1,0392 

'  Special  session. 


2  Forty  per  cent. 


The  States  differ  widely  in  the  degree  of  discretion  which 
they  leave  to  the  Legislature  in  dealing  with  this  matter.  In 
Missouri  any  act  is  an  emergency  measure  which  is  declared 
so  to  be.  Acts  making  appropriations  are  privileged  as  emer- 
gency measures  in  Michigan,  and  measures  for  the  support 
of  the  State  government  and  State  institutions  are  so  listed 
in  Arizona.  The  definition  of  "emergency  measures"  which  has 
found  widest  acceptance  is:  "measures  immediately  necessary  for 
the  preservation  of  the  public  peace,  health  or  safety."  Sub- 
stantially this  phrasing  is  found  in  the  Constitutions  of  nine 
States.  (Arizona,  Michigan,  Nebraska,  New  Mexico,  Ohio,  South 
Dakota,  California,  Maine  and  Oklahoma.)  But  several  of  the 
States,  distrusting  the  interpretation  w^hich  a  heedless  or  reck- 
less Legislature  might  put  upon  these  simple  phrases,  have 
sought  to  remove  temptation  by  narrowing  the  range  of  possible 
interpretation.  Thus,  the  California  Constitution  adds  to  tbe 
above  definition  the  following:  "Provided,  however,  that  no 
measure  creating  or  abolishing  any  office  or  changing  the  sal- 
ary, term  or  duties  of  any  officer,  or  granting  any  franchise  or 
special  privilege,  shall  be  construed  to  be  an  emergency." 
Maine  makes  special  exclusion  of  the  following:  "(1)  an  in- 
fringement on  the  right  of  home  rule  for  municipalities;  (2)  a 
franchise  or  license  to  a  corporation  or  individual  to  extend 
longer  than  one  year,  or  (3)  provisions  for  sale  or  purchase  or 
renting  for  more  than  five  years  of  real  estate." 


205 

Five  of  the  States  secure  the  desired  object  not  by  sharper 
definition  of  "emergency"  but  by  requiring  that  the  Legis- 
lature shall  explicitly  declare  in  the  act  itself  that  the  proposed 
act  is  an  "emergency  measure."  Some  insist  that  this  declara- 
tion be  placed  in  a  separate  section.  Maine  and  North  Dakota 
require  that  the  section  declaring  it  an  emergency  shall  state 
the  facts  constituting  the  emergency,  and  California  and  Ohio 
require  that  that  section  be  passed  only  by  a  yea  and  nay  vote, 
upon  a  separate  roll-call  thereon.  Nearly  all  of  the  States 
which  exempt  emergency  measures  from  the  Referendum  re- 
quire that  the  justification  for  such  action  shall  be  evidenced 
by  an  exceptional  vote,  the  ordinary  minimum  being  a  two- 
thirds  vote  of  all  members  elected  to  each  house.  Other  States 
require  an  aye  and  nay  vote  in  each  house,  to  be  entered  on 
the  journal,  and  a  three-fourths  vote,  in  case  of  the  Governor's 
veto.  It  is  generally  provided  that  acts  passed  as  emergency 
measures  shall  go  into  effect  "immediately"  (California,  Michi- 
gan, Ohio,  Oregon,  Washington)  or  "when  the  Legislature 
directs"  (Maine,  Missouri,  Nebraska,  South  Dakota). 

Number  of  Signers  required.  —  Nine  of  the  States  which  have 
introduced  the  statutory  Referendum  insist  that  the  petitions 
therefor  shall  bear  the  signatures  of  five  per  cent  ("not  more 
than  five  per  cent,"  says  South  Dakota)  of  the  legal  voters  in 
the  State.  (Reckoned  on  the  list  of  registered  voters  in  No- 
vember, 1916,  in  Massachusetts,  this  would  mean  32,544  sig- 
natures.) It  may  be  a  matter  of  some  significance  that  the 
table  of  enactments  of  Initiative  and  Referendum  amendments 
seems  to  indicate  a  distinct  tendency  to  increase  the  percentage 
required.  Ohio  and  Washington  insist  upon  six  per  cent,  but 
• —  in  the  latter  State  —  in  no  case  more  than  30,000  voters. 
Four  States  require  ten  per  cent.  Maine  and  Maryland  make 
the  test  not  a  percentage  but  a  minimum  number,  —  "  not  less 
than  10,000  electors."  Missouri,  Montana,  Ohio  and  New 
Mexico  insist  that  the  petitioners  shall  be  widely  distributed, 
New  Mexico  stipulating  that  that  aggregate  of  ten  per  cent  of 
the  voters  shall  comprise  "not  less  than  ten  per  cent  of  the 
qualified  electors  of  each  of  three-fourths  of  the  counties." 

Time  of  Filing  the  Petition.  —  The  provisions  as  to  the  filing 
of  the  petition,  of  course,  vary  in  accordance  with  the  individual 


206 

State's  rule  as  to  the  time  when  the  acts  of  its  Legislature  go 
into  effect.  A  dozen  of  the  States  allow  ninety  days  after  the 
adjournment  of  the  Legislature  by  which  the  measure  in  ques- 
tion has  been  enacted.  Ohio  dates  the  ninety  days  from  the 
Governor's  filing  of  the  law.  IMontana  extends  the  time  to  six 
months  from  the  end  of  the  Legislature's  session.  New  Mexico 
starts  from  the  other  end,  insisting  that  the  petition  must  be 
filed  not  less  than  four  months  prior  to  the  next  general  election. 

Does  the  Filing  of  a  Referendum  Petition  Suspend  the  Lawf 
—  In  fifteen  States,  upon  the  filing  of  a  Referendum  petition 
within  the  allotted  time  and  bearing  the  requisite  number  of 
signatures,  the  operation  of  the  measure  against  which  it  is 
directed  is  suspended  until  it  shall  have  received  the  approval 
of  the  voters  at  a  general  or  special  election.  In  this  very 
fact  lies  the  cause  of  filing  some  petitions.  The  Statutory 
Referendum  has  been  advocated  mainly  as  a  device  for  block- 
ing bad  measures.  But,  like  all  modes  of  obstruction,  it  can 
be  used  for  unworthy  ends,  and  from  several  States  comes 
convincing  evidence  of  the  filing  of  referendum  petitions  against 
measures  which  wiere  passed  in  the  public  interest  and  which 
were  sure  to  be  approved  at  the  polls;  but  the  possibility  of 
securing  nearly  two  years'  delay  in  the  law's  going  into  effect 
was  a  stake  worth  striving  for  on  the  part  of  the  real  instigators 
of  the  petition. 

To  prevent  this  misuse  of  the  petition,  Nevada  provides  that 
the  challenged  measure  shall  remain  in  force  until  its  rejection. 
Both  California  and  Ohio  provide  that  acts  for  the  immediate 
preservation  of  the  public  peace,  health  or  safety  shall  continue 
in  effect  until  rejected  by  the  voters  or  repealed  by  the  Legis- 
lature. Although  Montana  requires  the  signatures  of  but  five 
per  cent  of  her  legal  voters  upon  a  referendum  petition,  she 
insists  upon  the  signatures  of  fifteen  per  cent  to  an  extraordi- 
nary petition  to  effect  the  suspension  of  the  measure,  and  New 
Mexico  requires  the  signatures  of  twenty-five  per  cent  upon  a 
similar  petition. 

The  Referendum  may  apply  to  Part  of  a  Measure.  —  In  nine 
States  the  Referendum  has  been  planned  on  the  model  of  the 
itemized  veto  possessed  by  the  Governor  in  many  of  the  States. 
In   substantially   identical  language,    it   is   provided   that  the 


207 

filing  of  a  petition  against  one  or  more  items,  sections  or  parts 
of  an  act  shall  not  delay  the  remainder  of  that  act  from  be- 
coming operative. 

When  is  the  Referendum  to  be  submitted  to  the  Voters  f  — 
The  usual  provision  is  that  the  measure  against  which  a  Ref- 
erendum petition  has  been  filed  shall  be  submitted  to  the  people 
at  the  next  general  election.  Four  States  add  the  phrase: 
"occurring  at  any  time  subsequent  to  thirty  days  after  the 
filing  of  the  petition."  California  and  Maine  provide  that  the 
Governor  may  call  a  special  election  to  pass  upon  such  meas- 
ures. 

By  what  Vote  is  a  Referred  Measure  Adopted?  —  On  the 
question  what  vote  should  be  required  for  the  adoption  of  a 
measure  referred  to  the  people  there  is  pronounced  difference 
of  opinion  among  students  of  government  and  difference  of 
practice  by  the  several  States.  Of  those  which  have  introduced 
the  Referendum  alone,  or  which  deal  with  it  separately,  three 
(Nebraska,  North  Dakota  and  Oklahoma)  provide  that  the 
measure  shall  be  adopted  by  a  mere  majority  of  the  votes  cast 
thereon,  without  regard  to  the  aggregate  of  the  number  express- 
ing any  opinion  upon  the  question.  Nevada  requires  that  a 
majority  of  the  electors  voting  at  that  State  election  shall  vote 
in  approval  of  the  measure.  New  Mexico  provides  that  the 
measure  shall  be  rejected,  if  a  majority  of  legal  votes  cast 
thereon  and  not  less  than  forty  per  cent  of  the  total  number 
of  legal  votes  cast  at  that  election  shall  be  cast  for  its  rejection. 
It  deserves  to  be  recalled,  in  this  connection,  that  of  the 
seventy-three  Referendum  votes  taken  in  the  Commonwealth 
of  Massachusetts  sixteen  failed  to  secure  an  aggregate  vote  of 
thirty  per  cent  of  the  number  cast  at  that  election.  For  further 
discussion  of  required  majorities,  see  page  216. 

Amendment  and  Repeal  of  a  Measure  Approved  on  Refer- 
endum. —  When  a  measure  has  been  approved  by  direct  vote 
of  the  people,  shall  it  be  immune  from  change  by  the  ordinary 
legislative  process?  California  and  Michigan  are  content  to 
allow  such  measures  to  be  amended  by  the  Legislature  at  any 
subsequent  session,  trusting  to  a  later  Referendum  to  bafile 
any  attempt  there  made  to  reverse  the  voters'  decision.  Ne- 
vada, on  the  other  hand,  declares  that  a  measure  which  has 


208 


been  adopted  by  the  electors  shall  in  no  way  be  amended,  sus- 
pended or  made  inoperative  except  by  direct  vote  of  the  people. 
To  what  Extent  is  the  Statutory  Referendum  Invoked,  and 
how  Many  Laws  are  Rejected  thereby  f  —  In  view  of  the  enormous 
number  of  laws  turned  out  each  year  by  our  legislative  mills, 
and  in  view  of  the  further  fact  that  the  Statutory  Referendum 
has  been  introduced  only  in  States  where  the  work  of  the  Legis- 
lature was  more  or  less  under  suspicion,  the  number  of  laws 
which  have  been  challenged  by  Referendum  petitions  is  sur- 
prisingly small.  The  following  table  presents  the  record.  Of 
course  the  securing  of  an  adverse  majority  was  the  goal  at 
which  the  referendum  petitioners  aimed. 


State. 

Year. 

Acts 
referred. 

Accepted. 

Rejected. 

Arizona,            ..... 

1912 

8 

8 

_ 

1914 

4 

2 

2 

1916 

- 

- 

- 

Arkansas,          ..... 

1912 

1 

_ 

1 

1914 

- 

- 

- 

1916 

2 

1 

1 

California,        ..... 

1912 

3 

_ 

3 

1914 

4 

3 

1 

1916 

1 

- 

1 

Colorado,          .          .          . 

1912 

6 

1 

5 

1914 

5 

1 

4 

1916 

1 

1 

- 

Maine,    ...... 

1910 

3 

_ 

3 

1911 

- 

- 

- 

1912 

1 

1 

- 

1913 

- 

- 

- 

1914 

1 

1 

- 

1915 

- 

- 

- 

1916 

1 

1 

- 

Missouri,           ..... 

1914 

4 

_ 

4 

1916 

- 

- 

— 

Michigan,         ..... 

1914 

_ 

- 

- 

1916 

- 

- 

— 

Maryland,        ..... 

1916 

- 

- 

- 

Montana,          ..... 

1912 

1 

- 

1 

1914 

1 

- 

1 

1916 

~ 

— 

~ 

209 


State. 

Year. 

Acts 
referred. 

Accepted. 

Rejected. 

Nevada,           ..... 

1908 

1 

1 

- 

Nebraska,        ..... 

1914 

3 

1 

2 

1916 

- 

- 

- 

North  Dakota,           .... 

1916 

2 

2 

- 

Ohio 

1914 

_ 

_ 

1916 

- 

- 

- 

Oklahoma,       ..... 

1910 

1 

_ 

1 

1912-16 

- 

- 

- 

Oregon,  ...... 

1908 

1 

_ 

1 

1910 

3 

2 

1 

1912 

3 

1 

2 

1914-16 

- 

- 

- 

South  Dakota,          .... 

1908 

3 

3 

_ 

1910 

5 

- 

5 

1912 

3 

3 

- 

1914 

1 

_ 

1 

1916 

1 

- 

1 

Washington,    ..... 

1914 

_ 

_ 

_ 

1916 

7 

~ 

7 

In  seventeen  States,  since  their  introduction  of  the  Statutory 
Referendum,  the  compiler  finds  a  record  of  petitions  being  filed 
only  in  the  case  of  eighty-one  measures.  In  forty-eight  in- 
stances the  challenge  has  resulted  in  the  rejection  of  the  acts 
which  had  been  passed  by  the  Legislature.  The  record  of  the 
Washington  Legislature  of  1916  was  such  as  to  arouse  great 
popular  protest,  and  the  result  was  the  rejection  of  a  long  list 
of  its  acts.  But  the  rest  of  the  table  gives  no  indication  of  an 
increasing  disposition  to  hold  up  legislation  by  the  Referendum. 
Of  course,  its  advocates'  contention  is  that  its  main  service 
lies  in  the  deterrent  effect  which  it  exercises  upon  Legislatures 
while  they  are  doing  their  work,  rather  than  in  the  later  re- 
pudiation of  their  work. 

Nature  of  Laws  rejected.  —  The  following  list  indicates  the 
nature  of  the  laws  which  have  been  rejected  at  the  last  two 
general  elections,  and  the  degree  of  interest  manifested  in  those 
Referenda,  as  gauged  by  the  aggregate  vote  cast  upon  each 
question,  as  compared  with  the  vote  cast  for  candidates  for 
the  highest  office  filled  at  that  election. 


210 


Laws  rejected  by  Referenda,  1914  end  1916. 


Per 

State. 

Year. 

Measure. 

Cent 
Total 
Vote. 

Arizona, 

1914 

Relating  to  the  creation  of  new  counties. 

65 

Changing  county  seats,          .... 

66 

California,    . 

1916 

Direct  Primary  Law,  ..... 

68 

Colorado, 

1914 

For  a  public  utilities  commission. 

41 

Licensing  commission  merchants, 

42 

Special  provision  for  additional  peace  officers. 

45 

Missouri, 

1914 

Requiring  railroads  to  employ  full  crews  of 

trainmen,          ...... 

78 

Making  counties  the  sole  units  in  local  option 

elections,          ...... 

78 

Providing  for  a  bi-partisan  board  of  excise 

commissioners,          ..... 

70 

Providing  for  a  bi-partisan  board  of  pohce  com- 

missioners,      ...... 

70 

Montana, 

1914 

Establishing  a  commission  to  regulate  boxing 

contests,           ...... 

48 

Nebraska,     . 

1914 

University  removal,     ..... 

90 

Nebraska  City  Armory,        .... 

74 

South  Dakota, 

1914 

Amending  Northern  Normal  School  charter,  . 

78 

Washington, 

1916 

Requiring  the  signing  of  initiative  and  referen- 

dum petitions  at  registration  places,  . 

68 

Recall  petitions  to  be  signed  at  registration 

places,     ....... 

68 

Return  to  party  conventions, 

66 

Against  election  picketing,    .... 

70 

Certificate  of  convenience  and  necessity, 

66 

Port  Commission  Bill,            .... 

64 

Budget  Bill 

66 

The  Missouri  and  Washington  elections  were  "Vote  'No'"  elections,  in  which 
every  measure  put  before  the  voters  was  rejected,  —  fifteen  in  the  former  and  ten 
in' the  latter  State. 


THE  STATUTORY  INITIATIVE  AND  REFERENDUM:  COMMON 

PROVISIONS. 

Despite  the  fact  that  there  are  marked  differences  in  the 
theory  and  intent  of  the  Initiative  and  Referendum  —  the  one 
being  designed  to  force  the  enactment  of  laws  which  the  Legis- 
lature is  reluctant  to  pass,  while  the  other  is  intended  to  annul 
objectionable  laws  which  the  Legislature  has  already  passed  — 
there  is  much  in  the  procedure  employed  which  is  common  to 


211 

both,  and  many  States  reserve  to  the  people  both  forms  of 
legislative  power  and  provide  regulations  for  its  exercise  in  the 
same  article  of  the  Constitution  or  in  the  same  statute.  Sueh 
provisions,  relating  alike  to  the  working  of  the  Initiative ,  and 
Referendum,  will  therefore  be  discussed  together  in  the  follow- 
ing pages. 

Method    of    Invoking   the    Initiative    and    Referendum: 

THE  Petition. 

The  pioneer  State  to  reserve  to  the  people  the  power  of 
direct  legislation,  South  Dakota,  made  no  provision  in  her  con- 
stitutional amendment  as  to  the  method  by  which  the  "not 
more  than  five  per  centum  of  the  qualified  electors  of  the 
State"  should  invoke  the  Initiative  or  Referendum,  but  re- 
quired that  the  Legislature  should  make  suitable  provisions  for 
carrymg  the  amendment's  provisions  into  effect.  This  was 
done  the  following  year.  But  Utah  (1900)  and  Idaho  (1912), 
having  by  constitutional  amendments  reserved  these  powers  to 
the  people  "under  such  conditions  and  in  such  manner  as  may 
be  provided  by  the  Legislature,"  have  discovered  that  an 
amendment  may  prove  of  no  effect  unless  it  is  made  self- 
executory.  Not  till  1917  did  the  Utah  Legislature  provide  the 
necessary  statute,  and  the  Idaho  Legislature  has  not  yet  acted. 
All  the  other  States  make  explicit  provision  that  the  voters' 
challenge  for  the  enactment  or  rejection  of  laws  shall  be  by 
petition. 

The  Petitio7i's  Form  and  Content. 

The  petition,  addressed  to  the  Governor  or  Secretary  of 
State,  in  form  follows  provisions  set  forth  in  the  statute  or  the 
rules  laid  down  by  the  Secretary  of  State,  Attorney-General, 
or  some  commission  dealing  with  elections.  Four  States  (Ari- 
zona, California,  Michigan,  Maine)  have  made  it  a  constitu- 
tional requirement  that  every  petition  shall  contain  a  full  and 
correct  copy  of  the  text  of  the  measure  in  question. 

The  Signatures. 
Who  may  solicit  them,  and  on  what  Basis?  —  Three  States 
(Colorado,  Maine,  Ohio)  require  merely  that  the  solicitor  shall 
be  a  qualified  elector  of  the  State.    Others  insist  that  he  must 


212 

be  an  elector  of  the  city  or  county  in  which  he  is  circulating 
the  petition. 

In  most  of  the  States  the  solicitation  has  been  to  a  large 
extent  by  paid  signature-getters,  the  ordinary  rate  being  five 
cents  a  name.  In  some  States  solicitors  have  been  sought  by 
newspaper  advertisements,  promising  high  rates  of  pay.  The 
assumption  that  the  number  of  petitioners'  names  thus  se- 
cured affords  any  real  gauge  of  the  quantity  or  quality  of 
public  opinion  on  a  given  measure  finds  little  basis  in  logic  or 
experience.  Flagrant  and  wholesale  frauds  on  the  part  of 
solicitors  have  been  discovered.  Oklahoma's  Constitution  pro- 
vides that  laws  shall  be  enacted  to  prevent  corruption  in  con- 
nection with  these  petitions.  In  1913  South  Dakota's  Legis- 
lature enacted  a  law  prohibiting  the  circulator  of  such  petitions 
from  receiving  compensation  therefor.  Yet  the  task  of  securing 
the  signatures  of  five  per  cent  of  the  voters  (in  Massachusetts 
some  32,000  names)  must  involve  much  time  and  effort.  In 
Oregon  it  has  repeatedly  been  found  that  even  such  large  and 
elaborately  organized  associations  as  the  State  Grange,  in  seek- 
ing to  further  measures  in  which  its  members  were  vitally 
interested,  after  exhausting  volunteer  efforts,  have  had  to  hire 
solicitors  to  secure  the  last  hundreds.  Question  has  been  raised 
whether  the  prohibition  of  pay  for  signature-getting  would  not 
in  some  instances  stand  in  the  way  of  desirable  and  justifiable 
use  of  the  petition.  If  such  prohibition  is  to  be  made,  the 
percentage  or  number  of  names  required  becomes  a  matter  for 
serious  consideration. 

What  Information  should  accompany  the  Signature?  —  "With 
the  signature  there  should  be  given  enough  detail  to  make  pos- 
sible the  identification  of  the  signer.  The  usual  requirement 
is  that  the  signer  shall  state  the  street  and  number  of  his 
residence.  Some  States  insist  that  he  shall  put  down  his 
election  precinct,  and  date  his  signature. 

How  shall  the  Genuineness  of  his  Qualifications  be  Evidenced? 
—  1.  Arizona  accepts  each  petitioner's  declaration  that  he  is 
a  qualified  elector. 

2.  Maine  requires  the  certificate  of  the  local  city  or  town 
clerk  that  the  signers'  names  are  on  the  voting  list  as  qualified 
to  vote  for  Governor. 


213 

3.  By  affidavit.  Four  States  require  that  the  affidavit  be 
signed  by  the  circulator  of  the  petition.  Maine  requires  it 
from  any  one  of  the  certified  petitioners,  and  Colorado  from 
any  qualified  elector. 

The  most  common  formula  asserts  that  "the  signatures  are 
genuine  to  the  best  of  the  affiant's  knowledge  and  belief,  and 
that  they  were  made  in  his  presence."  Colorado  insists  that 
he  state  that  to  the  best  of  his  knowledge  and  belief  the  signers 
are  electors,  and  Ohio  "that  the  petitioners  signed  with  knowl- 
edge of  the  contents  of  the  petition  and  on  the  dates  set 
opposite  their  names."  South  Dakota's  affidavit  is  even  more 
exacting  (act  of  March  13,  1913). 

The  Basis  for  Computing  the  Number  of  Signers.  —  In  most 
States  the  requisite  number  of  signatures  is  determined  as  a 
percentage  of  the  whole  number  of  electors  who  voted  for 
Governor  (or  for  the  highest  elective  officer)  at  the  regular 
election  next  preceding  the  filing  of  any  petition  for  the  Ini- 
tiative or  Referendum.  In  States  like  Oregon,  which  have 
adopted  woman's  suffrage  since  they  wrote  "eight  per  cent" 
and  "five  per  cent"  into  their  constitutional  amendments,  the 
difficulty  involved  in  getting  a  measure  upon  the  ballot  has 
been  practically  doubled,  which  may  have  a  bearing  upon  the 
fact  that  the  number  of  measures  voted  on  has  shrunk  from 
thirty-seven  in  1912  to  twenty-nine  in  1914,  and  eleven  in  1916. 

Maine  makes  her  requirement  a  definite  number  of  signa- 
tures, —  12,000  in  the  case  of  the  Initiative  and  10,000  in  the 
case  of  the  Referendum  petition. 

The  Filing  of  the  Petition. 
A  dozen  constitutions  merely  state  that  the  petition  shall  be 
filed  with  the  Secretary  of  State.  The  CaHfornia  and  ^Michigan 
Constitutions  go  most  into  detail  as  to  the  filing  of  sections  of 
the  petition  with  the  county  clerk  or  local  registrar  of  voters, 
and  his  duties  as  to  examining,  certifying  and  transmitting  it 
to  the  Secretary  of  State.  California,  ^Michigan  and  Ohio  per- 
mit the  filing  of  supplementary  petitions  in  case  it  is  found 
that  the  original  one  has  not  been  signed  by  the  requisite 
number. 


214 


The  Submission  of  the  Measure  to  the  Electors. 

As  to  the  submission  of  measures  to  the  people,  some  con- 
stitutions declare  that  the  procedure  shall  be  governed  by  gen- 
eral laws  and  the  amendment  establishing  the  Initiative  and 
Referendum,  until  additional  legislation  shall  especially  provide 
therefor.  In  some  of  the  later  constitutions,  however,  the 
whole  procedure  is  laid  down  in  intricate  detail.  Ohio's  Con- 
stitution affords  a  bewildering  example. 

Methods  of  Publicity.  —  One  of  the  most  important  questions 
is,  what  information  or  assistance  shall  the  State  provide  for 
the  elector  in  preparation  for  his  task?  Three  of  the  consti- 
tutions merely  provide  that  the  text  of  all  measures  to  be  sub- 
mitted shall  be  published  as  constitutional  amendments  are 
published.  Arizona,  Arkansas  and  Colorado  insist  that  the 
measures  shall  be  printed  in  full  in  at  least  one  newspaper  in 
each  county  where  a  newspaper  is  published,  for  times  varying 
from  one  to  three  months.  Maine  trusts  to  the  distribution  of 
sample  ballots  to  give  needed  publicity.  On  the  other  hand, 
half  a  dozen  States  take  the  duty  more  seriously,  and  provide 
for  the  distribution  of  the  measure  and  arguments  thereon.  In 
Oregon  one  brief  or  argument  may  be  presented  by  the  sponsors 
for  a  measure  and  any  number  by  those  persons  or  organiza- 
tions who  oppose  it,  the  cost  of  printing  and  of  paper  being 
borne  by  those  who  present  the  arguments;  these  are  compiled 
by  the  Secretary  of  State  into  a  campaign  pamphlet,  containing 
the  ballot  title,  exactly  as  it  is  to  appear  in  the  voting  booth, 
and  the  full  text  of  each  measure.  These  are  to  be  mailed  to 
"every  voter  in  the  State  whose  address  he  may  have"  fifty- 
five  days  in  advance  of  the  general  election.  The  cost  of  bind- 
ing and  distribution  and  of  printing,  except  that  of  the  argu- 
ments, is  borne  by  the  State.  It  is  unusual  for  arguments  to 
be  presented  by  both  the  advocates  and  the  opponents  of  a 
measure,  and  half  the  measures  appear  unaccompanied  by  any 
argument. 

In  California  the  Constitution  provides  that  persons  to  pre- 
pare and  present  arguments  for  and  against  each  measure  shall 
be  designated  by  the  presiding  officer  of  the  Senate.  Although 
some  of  these  arguments  are  spiritless,  this  method,  never  the- 


215 

less,  assures  the  voter's  having  an  opportunity  to  see  what  is 
to  be  said  upon  both  sides  of  every  measure  upon  which  he  is 
to  pass  judgment.  In  Ohio  the  persons  to  prepare  the  ar- 
guments are  selected  by  the  Legislature,  or  by  the  Governor, 
if  the  Legislature  is  not  in  session,  and  the  arguments,  in  each 
case,  must  not  exceed  three  hundred  words.  Montana,  Okla- 
homa and  Washington  also  make  provision  for  publicity  by 
official  pamphlets,  in  which  the  full  text  of  the  measures  is 
accompanied  by  arguments.  This  method  involved  consid- 
erable expense,  though  it  is  to  be  doubted  whether  it  is  greater 
than  that  demanded  for  newspaper  advertising,  and  it  is  more 
free  from  favoritism  or  graft.  Despite  the  fact  that  many  of 
the  campaign  pamphlets  are  entirely  wasted,  this  method, 
nevertheless,  gives  every  voter  his  opportunity  to  inform  him- 
self. Some  gauge  of  its  effectiveness  in  stimulating  interest 
can  be  secured  by  comparing  the  percentage  of  voters  who 
actually  vote  on  these  measures  with  those  voting  in  the  election 
of  candidates,  in  States  employing  these  campaign  pamphlets 
and  in  States  which  trust  to  newspaper  publication  of  the 
measures;  or  a  similar  comparison  may  be  made  within  the 
same  State  before  and  after  its  adoption  of  the  pamphlet. 
Thus,  in  California,  1899  to  1908,  "the  average  vote  on  the 
fifty-one  measures  submitted  by  the  Legislature,  indicated  as 
a  percentage  of  the  total  attendance  at  the  polls,  was  forty- 
three  per  cent."  ^  On  the  seven  measures  submitted  to  the  voters 
in  1916,  the  average  was  seventy-nine  per  cent. 

The  Ballot.  —  In  most  States  the  Constitution  devolves  upon 
the  Secretary  of  State  the  duty  of  preparing  the  titles  which 
shall  stand  for  the  measures  upon  the  ballot,  "in  such  form  as 
to  present  the  question  or  questions  concisely  and  intelligibly" 
(Maine).  In  Oregon  the  phrasing  of  the  ballot  title  is  the  duty 
of  the  Attorney-General.  ^Nluch  hinges  on  the  skill  and  honesty 
with  which  this  simple  task  is  performed.  W^^M 

Conflicting  Provisions  or  Measures.  —  Four  States  (Arizona, 
California,  Nebraska  and  Nevada)  provide  that,  if  conflicting 
measures  submitted  to  the  people  at  the  same  election  shall  be 
approved  by  the  electors,  the  measure  receiving  the  highest 
number  of  aflBrmative  votes  shall  thereupon  become  law.as^to 

>  Holcombe,  Stale  Government  in  the  United  States,  423. 


216 

all  conflicting  provisions.  In  case  of  conflicting  measures 
appearing  upon  the  same  ballot,  Washington's  Constitution 
provides  that  the  voter  shall  have  an  opportunity  to  express 
two  preferences:  (1)  as  between  either  measure  and  neither, 
and  (2)  as  between  one  and  the  other.  If  the  majority  of  those 
voting  on  the  first  issue  is  for  neither,  both  fail;  but  in  that 
case  votes  on  the  second  issue  shall  nevertheless  be  carefully 
counted  and  made  public.  If  the  majority  voting  on  the  first 
issue  is  for  either,  then  the  measure  receiving  a  majority  of  the 
votes  on  the  second  issue  shall  be  law. 

Majority  Required  for  Adoption.  —  In  the  constitutions  which 
make  general  provision  for  both  the  Initiative  and  Referen- 
dum together,  seven  States  require  for  the  adoption  of  a 
measure  merely  a  majority  of  the  votes  cast  thereon  (Arizona, 
California,  Colorado,  Maine,  Michigan,  Missouri,  Oregon). 
Washington  insists  that  the  vote  cast  upon  such  measures  shall 
equal  one-third  of  the  total  vote  cast  at  that  election.  Ne- 
braska requires  that  the  vote  in  favor  of  the  measure  shall 
constitute  thirty-five  per  cent  of  the  total  vote  cast  at  the 
election.  Nevada  insists  upon  the  approval  of  each  referred 
measure  by  a  majority  of  those  voting  at  that  election,  while 
each  Initiative  measure  is  adopted  by  a  majority  of  the  votes 
cast  thereon.  In  Oklahoma,  on  the  other  hand.  Initiative 
measures  require  a  majority  of  the  votes  cast  at  the  election, 
while  a  referred  measure  is  given  effect  by  a  majority  of  the 
votes  cast  thereon.  In  Arkansas,  measures  submitted  to  the 
voters  by  the  Legislature,  whether  constitutional  amendments 
or  statutes,  require  the  approval  of  a  majority  of  the  votes 
cast  at  that  election,  whereas  measures  brought  before  the 
electors  by  initiative  or  referendum  petition  require  only  a 
majority  of  votes  cast  thereon. 

The  insistence  upon  a  majority  of  the  votes  cast  at  the 
election  has  caused  the  failure  of  many  measures  upon  which 
the  approval  of  those  actually  voting  on  them  was  heavily 
preponderant.  Thus,  in  Arkansas  (November  7,  1916)  the 
total  vote  for  candidates  was  167,505.  A  "Good  Road  Tax" 
measure  was  approved  by  the  voters,  82,503  to  66,150,  a 
majority  of  16,353,  yet  it  "failed  to  pass,"  because  the  favor- 
ing vote  did  not  exceed  83,753.     In  the  Oklahoma  votings  on 


217 

the  eleven  measures  at  the  regular  elections  in  the  years  1908 
and  1910  five  bills  of  importance,  which  were  approved  by 
majorities  ranging  from  27,994  to  58,503,  nevertheless  failed  of 
enactment  because  the  constitutional  majority  was  not  secured. 

Canvass  of  the  Returns.  —  Arizona  is  the  only  State  to  require 
any  exceptional  formality  in  the  procedure  of  canvassing  the 
votes  for  and  against  Initiative  and  Referendum  measures: 
the  Secretary  of  State  is  to  do  this  service  in  the  presence  of 
the  Governor  and  Chief  Justice  of  the  Supreme  Court  of  the 
State. 

Governor's  Veto  on  Submittea  Measures.  —  Fifteen  States 
explicitly  declare  that  the  Governor's  veto  power  shall  not 
extend  to  measures  which  have  been  approved  by  vote  of  the 
people. 

Resubmission  of  Rejected  Measures.  —  In  order  that  the 
electors  may  not  be  tired  out  by  the  importunity  of  advocates 
for  a  measure  for  which  there  is  no  substantial  demand,  the 
Oklahoma  Constitution  provides  that  no  measure  which  has 
been  rejected  by  the  people  through  the  powers  of  the  Initia- 
tive or  Referendum  can  be  again  proposed  by  the  Initiative 
within  three  years  thereafter  by  less  than  twenty-five  per  cent 
of  the  legal  voters.  Similar  action  is  under  consideration  in 
several  States,  and  is  being  advocated  by  some  of  the  principal 
leaders  in  the  propaganda  for  the  Initiative  and  Referendum. 

Amendment  and  Repeal  of  Adopted  Measures. 
On  this  point  there  is  wide  diversity  in  the  laws  of  the  sev- 
eral States.  Oklahoma  declares  that  the  reservation  of  the 
powers  of  the  Initiative  and  Referendum  shall  not  deprive  the 
Legislature  of  the  right  to  repeal  any  law,  or  propose  or  pass 
any  measure  which  may  be  consistent  with  the  Constitution  of 
the  State  and  the  Constitution  of  the  United  States.  On  the 
other  hand,  Arizona  (by  an  amendment  adopted  in  1914  by  a 
majority  of  83  in  a  vote  of  16,567  to  16,484)  provides  the  power 
of  the  Governor  to  veto  or  of  the  Legislature  to  amend  or  repeal 
shall  not  extend  to  initiative  or  referendum  measures  which 
have  been  approved  by  the  electors.  The  Washington  Con- 
stitution pursues  a  more  moderate  course  than  either  of  these; 
it  discourages  hasty  or  resentful  action  on  the  part  of  the  Legis- 


218 

lature  by  providing:  "No  act,  law  or  bill,  approved  by  a 
majority  of  the  electors  voting  thereon,  shall  be  amended  or 
repealed  by  the  Legislature  within  a  period  of  two  years 
following  such  enactment." 

Relation  of  Initiative  and  Referendum  to  the  Rights  of  Members 
of  the  Legislature. 
Ten  State  Constitutions  are  at  pains  to  set  forth  that  the 
section  relating  to  the  Initiative  and  Referendum  shall  not  be 
construed  to  deprive  any  member  of  the  Legislature  of  the 
right  to  introduce  any  measure.  On  the  other  hand,  the  Oregon 
Constitution  is  explicit  in  its  statement  that  the  words  "the 
legislative  assembly  shall  provide,"  or  any  similar  phrases  in 
the  Constitution,  shall  not  be  construed  to  grant  to  the  Legis- 
lature any  exclusive  power  of  law-making,  nor  in  any  way 
limit  the  Initiative  and  Referendum  powers  reserved  to  the 
people. 

The  Number  of  Measures  on  the  Ballot  and    their  Limitation. 

The  great  number  of  measures  which  have  been  placed  upon 
the  ballot  has  at  times  imposed  a  preposterous  task  upon  the 
voter,  after  all  allowance  is  made  for  his  being  supplied  with  a 
campaign  book  with  two  months  for  its  study.  But  an  exam- 
ination of  these  long  lists  of  measures  {e.g.,  Ohio,  42  in  1912; 
Oregon,  37  in  1912;  California,  48  in  1914)  discloses  that  a 
very  considerable  proportion  of  these  measures  were  brought 
before  the  people,  not  by  initiative  or  referendum  petition, 
but  by  the  Legislature  itself  in  starting  constitutional  amend- 
ments, or  in  attaching  a  referendum  clause  to  its  own  bills. 
In  not  a  few  cases  it  is  the  Compulsory  Referenda  which  have 
least  enlisted  and  deserved  the  electors'  interest. 

Apparently  this  abuse  of  numbers  is  correcting  itself  in  some 
measure.  There  has  been  a  marked  falling  off  in  several  States 
in  the  number  of  measures  upon  which  the  people  have  been 
asked  to  vote.  In  some  cases  this  may  be  attributed  in  part 
to  the  doubled  difficulty  in  securing  the  fixed  percentage  of 
voters  as  signers  of  petitions,  after  the  granting  of  the  suffrage 
to  women.  In  the  first  few  years  after  the  introduction  of  the 
Initiative,  it  is  to  be  expected  that  measures  which  its  sponsors 
have  been  seeking  will  be  forced  upon  the  ballot.     The  more 


219 

desirable  of  these  are  soon  secured.  With  that  accomplished, 
and  with  the  novelty  of  the  Initiative  and  Referendum  worn 
off,  there  seems  a  clearly  marked  and  general  tendency  for 
these  legislative  devices  to  come  to  their  more  normal  use,  as 
implements  or  weapons  not  to  be  played  or  experimented  with, 
but  to  be  kept  in  readiness  for  time  of  need. 

JUDICIAL  DECISIONS  RELATING  TO  THE  INITIATIVE  AND 
REFERENDUM. 

Of  the  questions  relating  to  the  Initiative  and  Referendum 
which  have  been  brought  into  court,  the  following  are  the  most 
important: 

1.  Do  the  Initiative  and  Referendum  abolish  or  interfere 
with  that  "republican  form  of  government"  which  is  guar- 
anteed to  every  State  in  this  Union  under  Section  4  of  Article 
IV  of  the  Federal  Constitution? 

The  Supreme  Court  of  the  United  States,  in  Pacific  States 
Telephone  and  Telegraph  Co.  v.  Oregon  (1912),  223  U.  S.  118, 
held  that  the  question  as  to  when  the  government  of  a 
State  had  ceased  to  be  republican  in  form,  and  when  there 
was  call  for  the  enforcement  of  the  above  guaranty  were 
questions  "not  cognizable  by  the  judicial  power,  but  solely 
committed  by  the  Constitution  to  the  judgment  of  Congress." 
In  delivering  the  opinion,  Mr.  Chief  Justice  White  reaffirmed 
the  doctrine  of  the  "absolutely  controlling  case"  of  Luther 
V.  Borden,  quoting  from  that  decision:  "When  the  senators 
and  representatives  of  a  State  are  admitted  into  the  coun- 
cils of  the  Union,  the  authority  of  the  government  under 
which  they  are  appointed,  as  well  as  its  republican  character, 
are  recognized  by  the  proper  central  authority.  And  its  de- 
cision is  binding  on  every  other  department  of  the  government 
and  could  not  be  questioned  in  a  judicial  tribunal."  Congress 
has  virtually  decided  in  favor  of  the  Initiative  as  a  proper 
instrumentality  in  State  government  by  receiving  without 
protest  the  representatives  and  senators  as  members  of  both 
houses  of  Congress  from  South  Dakota,  Oregon,  !Maine  and 
other  States  having  the  Initiative  in  their  Constitutions,  and 
also  by  admitting  to  the  Union  Oklahoma  and  Arizona,  with 
Constitutions  which  contained  the  Initiative. 


220 

"The  initiative  and  referendum  amendment  does  not  abolish 
or  destroy  the  repubhcan  form  of  government  or  substitute 
another  in  its  place.  The  people  have  simply  reserved  to  them- 
selves a  larger  share  of  legislative  power."  Kadderly  v.  Port- 
land (1903),  44  Ore.  118,  reaffirmed  in  State  v.  Pac.  States 
Tel.  &  Tel.  Co.  (1909),  53  Ore.  162,  and  followed  in  Ex  parte 
Wagner  (1908),  21  Okla.  33.  See  Kiernan  v.  Portland  (1910), 
57  Ore.  454.  "It  seems  inconceivable  that  a  State,  merely 
because  it  may  evolve  a  system  by  which  its  citizens  become 
a  branch  of  its  legislative  department,  co-ordinate  with  their 
representatives  in  the  Legislature,  loses  caste  as  a  republic." 

INIuch  the  same  doctrine  has  been  held  in  the  following  cases, 
representing  four  different  States: 

State  ex  rel  Schrader  v.  Policy  (1910),  26  So.  Dak.  5. 

Ex  parte  Wagner  (1908),  21  Okla.  33.  This  calls  attention 
to  President  Roosevelt's  proclamation  in  admitting  Oklahoma 
as  a  State:  "Whereas  it  appears  that  the  said  Constitution 
and  government  of  the  proposed  State  of  Oklahoma  are  repub- 
lican in  jorm,'^  etc. 

State  ex  rel.  Linde  ?;.  Taylor  (1916),  33  N.  D.  76. 

In  Ex  parte  Farnsworth  (1911),  61  Tex.  Crim.  Rep.  342,  the 
Initiative  and  Referendum  were  declared  to  be  unconstitu- 
tional by  the  Court  of  Criminal  Appeals  of  Texas,  but  their 
constitutionality  was  upheld  by  the  Supreme  Court  of  Texas 
in  Southwestern  Tel.  &  Tel.  Co.  r^.  City  of  Dallas  (1911), 
104  Tex.  114. 

2.  Who  decides  what  constitutes  an  "emergency?"  "The 
Legislature,  having  declared  that  an  act  is  an  emergency 
measure,  such  decision  is  final,  and  is  conclusive  upon  the 
courts."  State  ex  rel.  Lavin  et  al.  v.  Bacon  et  al.  (1901),  14  S.  D. 
394.  This  was  reversed  in  State  ex  rel.  Richards  v.  Whisman 
(1915),  36  S.  D.  260,  in  which  it  was  held  that  the  emergency 
clause  cannot  defeat  a  referendum  unless  an  actual  emergency, 
as  defined  by  the  Constitution,  exists. 

In  1916  the  Supreme  Court  of  Colorado  held  that  the  decla- 
ration by  the  General  Assembly  is  conclusive  and  the  courts 
cannot  review  the  question  so  as  to  allow  a  referendum  peti- 
tion.   Similar  decisions  have  been  given  in  the  courts  of  Oregon, 


221 


Arkansas,  Oklahoma  and  North  Dakota.  Other  holdings  have 
been  noted  in  Washington,  Michigan  and  California. 

3.  Who  judges  of  the  sufficiency  of  the  petition?  The 
Supreme  Court  of  Ohio,  in  The  State  ex  rel.  Gongwer  v.  Graves 
(1914),  90  Ohio  St.  311,  held  that  the  final  authority  is  vested 
in  the  Secretary  of  State. 

The  following  articles  summarize  some  of  the  most  important 
decisions : 

"The  Initiative  and  Referendum  before  the  Supreme  Court,"  Bradstreet's, 

February  24,  1912.     Vol.  40,  117. 
"The  Initiative  and  Referendum  a  Political  Question,"   Central  Law 

Journal,  March  1,  1912.     Vol.  74,  151. 
See  also  C.  A.  Beard:  Documents  on  the  Initiative,  Referendum  and  Recall, 

291-348. 

THE  INITIATIVE  AND  REFERENDUM  IN  LOCAL  GOVERN- 
MENT. 

The  Initiative  and  Referendum  have  proved  in  harmony 
with  the  general  scheme  of  the  "Commission  Form"  of  city 
and  town  government,  and  during  the  past  fifteen  years  have 
been  widely  introduced,  the  country  over.^ 

In  Massachusetts  their  use  was  authorized  in  charters  granted 
by  special  acts  to  the  following  cities: 


Year. 

City. 

Initiative. 

Referendum. 

1908 

Gloucester, 

25  per  cent,           .... 

25  per  cent. 

1908 

Haverhill, 

10  per  cent,  general  election,  . 
25  per  cent,  special  election. 

25  per  cent. 

1910 

Lynn, 

10  per  cent,  general  election. 
25  per  cent.,  special  election, 

25  per  cent. 

1911 

Lawrence, 

25  per  cent,  general  election, 
25  per  cent,  special  election,  . 

25  per  cent. 
25  per  cent. 

1911 

Lowell,    . 

10  per  cent,  general  election, 
20  per  cent,  special  election. 

15  per  cent. 

The  percentage  of  signatures  required  on  petitions  to  invoke 
the  Initiative  and  Referendum  is  figured  on  the  total  vote  for 

»  No  municipality  in  the  United  States  has  made  more  extended  use  of  the  Initiative  and  Ref- 
erendum than  has  Portland,  Oregon.     (See  Table  of  Votings,  Appendix  D.) 


222 

candidates  for  the  position  of  mayor  or  of  Governor  at  the  last 
preceding  election.  Of  the  five  cities,  only  Lowell,  Lawrence 
and  Lynn  have  thus  far  invoked  this  procedure. 

In  1915  (chapter  267,  An  Act  to  simplify  the  revision  of  city 
charters)  the  General  Court  set  forth  four  standard  forms  of 
charter,  and  authorized  the  citizens  of  any  municipality  of  the 
prescribed  population,  with  the  exception  of  Boston,  to  choose 
for  themselves  the  one  of  the  four  which  they  wished  to  adopt, 
without  recourse  to  the  Legislature.  Common  to  all  four  of 
these  forms  of  charter  were  the  provisions  relating  to  the  Ini- 
tiative and  Referendum.  In  case  an  Initiative  petition  is 
signed  by  twenty  per  cent  of  the  registered  voters,  addressed 
to  the  city  council  or  to  the  school  committee,  it  shall  be  trans- 
mitted to  the  body  to  wdiich  it  is  addressed;  that  body  shall 
either  pass  the  said  measure  without  alteration  or  the  city 
council  shall  call  a  special  election,  at  which  that  measure  shall 
be  submitted  to  the  voters,  and  no  measure  so  submitted  shall 
go  into  effect  unless  it  receives  the  aflSrmative  vote  of  at  least 
one-third  of  the  whole  number  of  registered  voters.  If  the 
Initiative  petition  is  proposed  by  a  petition  bearing  the  signa- 
tures of  eight  per  cent  but  less  than  twenty  per  cent  of  the 
registered  voters,  and  if  the  measure  is  not  passed  without 
alteration  within  twenty  days  by  the  city  council  or  school 
committee,  as  the  case  may  be,  that  measure  must  be  submitted 
to  the  voters  at  the  next  regular  city  election. 

A  Referendum  may  be  invoked  on  any  measure  passed  by 
the  city  council  or  by  the  school  committee,  if  a  petition  calling 
therefor  is  filed  within  twenty  days  of  its  passage,  signed  by 
registered  voters,  equal  in  nuniber  to  twelve  per  cent  of  the 
registered  voters  of  the  city.  The  city  council  or  school  com- 
mittee is  required  forthwith  to  reconsider  that  measure  and 
unless  it  is  wholly  annulled  or  repealed,  it  must  be  submitted 
to  the  voters  at  the  next  general  city  election  or  at  a  special 
election,  as  the  city  council  shall  determine,  and  the  measure 
thus  challenged  becomes  null  and  void  unless  a  majority  of 
the  qualified  voters  voting  on  the  same  at  such  election  shall 
vote  in  favor  thereof. 

For  discussion  of  the  Initiative  and  Referendum  in  local 
government,  see  C.  A.  Beard,  American  City  Government:    A 


223 

Survey  of  Newer  Tendencies,  The  Century  Company,  New 
York,  1912;  W.  B.  Munro,  The  Government  of  American  Cities, 
The  Macmillan  Company,  New  York,  1912,  especially  "Direct 
Legislation  and  the  Recall,"  321-357;  C.  F.  Taylor,  "Munici- 
pal Initiative,  Referendum  and  Recall  in  Practice,"  in  National 
Municipal  Review,  III,  693  (October,  1914). 

The  October,  1916,  issue  of  Equity  is  devoted  entirely  to 
the  topic:  "Municipal  Efficiency  under  Popular  Control," 
and  presents  a  survey  of  the  law  and  practice  as  to  the  Ini- 
tiative and  Referendum  in  the  cities  of  every  State  in  the 
Union. 


224 


Appendix    A 


CONSTITUTIONAL  AND  STATUTORY  PROVISIONS  RELAT- 
ING TO  THE  STATE-WIDE  INITIATIVE  AND  REFER- 
ENDUM. 


State. 

Constitution. 

Statutes. 

Arizona, 

Const.  1912,  art.  4,  part  1. 

_ 

Arkansas, 

Const.  (Amend.  1910),  art.  5, 

Acts  of  Ark.,  1909,  pp.  1238- 

sect.  1. 

1240. 
PubUc  Acts,   1911,  pp.  582- 
593. 

California,     . 

Const.  (Amend.  1911),  art.  4, 
sect.  1. 

Statutes,  1911,  pp.  1655-1659. 

Colorado, 

Const.  (Amend.  1910),  art.  5, 

Session   Laws,  1910,  pp.   11- 

sect.  1. 

14. 

Idaho, 

Const.  (Amend.  1912),  art.  3, 

Not  put  in  force  by  Legisla- 

sect. 1. 

ture. 

Maine, 

Const.  (Amend.  1908),  art.  4, 

Resolves,  1907,  ch.  121,  pp. 

part  1,  sects.  1  and  16-22. 

1476-1481. 

Michigan, 

Const.  1908,  art.  5,  sect.  38, 
and  art.  17,  sects.  2  and  3. 
Amend,  of  art.  5,  1913. 

Missouri, 

Const.  (Amend.  1908),  art.  4, 

Revised  Statutes,  1909,  vol.  2, 

sect.  57. 

ch.  59,  sects.  6747-6756. 

Mississippi,   . 

Const.  (Amend.  1914),  sect. 

33. 
Const.  (Amend.  1906),  art.  5, 

-                 -                 - 

Montana, 

Laws,  1907,  ch.  62. 

sect.  1. 

Nebraska, 

Const.  (Amend.  1912),  art.  3, 

General  Election   Laws,   art. 

sects.  1-ld  and  10. 

XIX    (Laws.   1913,    sects. 
397-411.) 

New  Mexico, 

Const.  1912,  art.  4.  sect.  1. 

_                 _                 - 

North  Dakota, 

Const.  (Amend.  1914),  arts. 
II,  XV. 

—                 —                 — 

Ohio,    . 

Const.  (Amend.  1912),  art.  2, 

Session  Laws,  1914,  p.  119. 

sects,  l-lg. 

Session   Laws,    1914-15,    pp. 
17,  295,  443. 

Oklahoma,    . 

Const.  1907,  art.  5,  sects.  1-4, 

Comp.  Laws,  1909,  ch.  51,  as 

6-8;  art.  24,  sect.  3. 

amended  by  ch.  66,  Laws, 
1910,  and  by  ch.  107,  Sess. 
Laws,  1910-11. 

Oregon, 

Const.    (Amend.    1902    and 

Laws,  1907,  ch.  226. 

1906),  art.  4,  sects.  1  and 

Laws,  1913,  ch.  359;  ch.  36. 

la;  art.  17. 

Laws,  1917,  ch.  176,  sect.  2. 

South  Dakota, 

Const.  (Amend.  1898),  art.  3, 

Session    Laws,    1899,    ch.    93 

sect.  1. 

and  94;  1913.  ch.  202. 
Comp.    Laws,    1908,    vol.    1, 
Pol.  Code,  sects.  21-28. 

Utah,   . 

Const.  (Amend.  1900),  art.  6, 
sects.  1  and  22. 

Session  Laws,  1917. 

Washington, 

Const.  (Amend.  1912),  art.  2, 
sect.  1. 

Session  Laws,  1915,  ch.  54. 

Maryland,     . 

Const.  (Amend.    1915),    art. 
XVI. 

_                 —                 — 

Massachusetts, 

Const.  (Amend.  1913) ,  Amend. 
XLII.  and  amendment  of 
1918. 

225 


Appendix    B 


TEXT    OF    CONSTITUTIONAL    AND    STATUTORY    PRO- 
VISIONS  RELATING    TO    THE    INITIATIVE    AND 
REFERENDUM  FROM  TYPICAL  STATES. 


OREGON. 

CONSTITUTIONAL  PROVISIONS. 

Article    IV. 

Legislative  Department. 

§  1.  Legislative  Authority  —  Style  of  Bill  — ■  Initiative  and  Referendum. 
The  legislative  authority  of  the  state  shall  be  vested  in  a  legislative 
assembh',  consisting  of  a  senate  and  house  of  representatives,  but  the 
people  reserve  to  themselves  power  to  propose  laws  and  amendments  to  the 
constitution  and  to  enact  or  reject  the  same  at  the  poUs,  independent  of  the 
legislative  assembh^,  and  also  reserve  power  at  their  own  option  to  approve 
or  reject  at  the  poUs  any  act  of  the  legislative  assembly.  The  first  power 
reserved  by  the  people  is  the  initiative,  and  not  more  than  eight  per  cent  of 
the  legal  voters  shall  be  required  to  propose  any  measure  by  such  petition, 
and  everj^  such  petition  shall  include  the  full  text  of  the  measure  so  pro- 
posed. Initiative  petitions  shaU  be  filed  with  the  secretarj''  of  state  not 
less  than  four  months  before  the  election  at  which  they  are  to  be  voted 
upon.  The  second  power  is  the  referendum,  and  it  may  be  ordered  (ex- 
cept as  to  laws  necessary  for  the  immediate  preservation  of  the  public 
peace,  health  or  safety),  either  by  the  petition  signed  b}^  five  per  cent  of 
the  legal  voters,  or  by  the  legislative  assembly,  as  other  bills  are  enacted. 
Referendum  petitions  shall  be  filed  with  the  secretar}^  of  state  not  more 
than  ninety  days  after  the  final  adjournment  of  the  session  of  the  legisla- 
tive assemblj'^  which  passed  the  bill  on  which  the  referendum  is  demanded. 
The  veto  power  of  the  governor  shall  not  extend  to  measures  referred  to 
the  people.  All  elections  on  measures  referred  to  the  people  of  the  state 
shall  be  had  at  the  biennial  regular  general  elections,  except  when  the 
legislative  assembly  shall  order  a  special  election.  Any  measure  referred 
to  the  people  shall  take  effect  and  become  the  law  when  it  is  approved  by 
a  majority  of  the  votes  cast  thereon,  and  not  otherwise.  The  style  of 
aU  bills  shall  be:  "Be  it  enacted  by  the  people  of  the  state  of  Oregon." 
This  section  shall  not  be  construed  to  deprive  any  member  of  the  legisla- 
tive assembl}^  of  the  right  to  introduce  any  measure.  The  whole  number 
of  votes  cast  for  justice  of  the  supreme  court  at  the  regular  election  last 


226 

preceding  the  filing  of  any  petition  for  the  initiative  or  for  the  referendum 
shall  be  the  basis  on  which  the  number  of  legal  voters  necessary  to  sign 
such  petition  shall  be  counted.  Petitions  and  orders  for  the  initiative 
and  for  the  referendum  shall  be  filed  with  the  secretary  of  state,  and  in 
submitting  the  same  to  the  people  he,  and  aU  other  officers,  shall  be 
guided  by  the  general  laws  and  the  act  submitting  this  amendment, 
until  legislation  shall  be  especially  provided  therefor. 

The  above  section  is  an  amendment  to  the  original  constitution,  and  was  adopted 
by  the  twentieth  legislative  assembly;  adopted  by  the  twenty-first  legislative  as- 
sembly: adopted  by  the  people,  by  vote  of  62,024  for,  to  5,668  against  it,  June  2, 
1902. 

§  ia.     Initiative  and  Referendum  on  Local,  Special,  and  Municipal  Laws 
and  Parts  of  Laws. 

The  referendum  may  be  demanded  by  the  people  against  one  or  more 
items,  sections,  or  parts  of  any  act  of  the  legislative  assembly  in  the  same 
manner  in  which  such  power  may  be  exercised  against  a  complete  act.  The 
filing  of  a  referendum  petition  against  one  or  more  items,  sections,  or 
parts  of  an  act  shall  not  delay  the  remainder  of  that  act  from  becoming 
operative.  The  initiative  and  referendum  powers  reserved  to  the  people 
by  this  constitution  are  hereby  further  reserved  to  the  legal  voters  of 
every  municipality  and  district,  as  to  all  local,  special,  and  municipal 
legislation,  of  every  character,  in  or  for  their  respective  municipaUties 
and  districts.  The  manner  of  exercising  said  powers  shall  be  prescribed 
by  general  laws,  except  that  cities  and  towns  maj''  provide  for  the  manner 
of  exercising  the  initiative  and  referendum  powers  as  to  their  municipal 
legislation.  Not  more  than  ten  per  cent  of  the  legal  voters  may  be  re- 
quired to  order  the  referendum  nor  more  than  fifteen  per  cent  to  propose 
any  measure,  by  the  initiative,  in  any  city  or  town. 

The  above  section  was  proposed  by  initiative  petition  filed  in  the  office  of  the 
secretary  of  state  February  3,  1906,  and  adopted  by  vote  of  the  people,  47,078  for, 
and  16,735  against,  June  4,  1906.  It  went  into  effect  by  proclamation  of  the  gov- 
ernor, issued  June  25,  1906. 

Article    XVII. 

Amendments. 

§  1.  Amendments  to  Constitution,  How  Made. 
Any  amendment  or  amendments  to  this  constitution  may  be  proposed 
in  either  branch  of  the  legislative  assembly,  and  if  the  same  shall  be 
agreed  to  by  a  majority  of  all  the  members  elected  to  each  of  the  two 
houses,  such  proposed  amendment  or  amendments  shall,  with  the  yeas 
and  nays  thereon,  be  entered  in  their  journals  and  referred  by  the  secre- 
tary of  state  to  the  people  for  their  approval  or  rejection,  at  the  next 
regular  general  election,  except  when  the  legislative  assembly  shall  order 


227 

a  special  election  for  that  purpose.  If  a  majority  of  the  electors  voting 
on  any  such  amendment  shall  vote  in  favor  thereof,  it  shall  thereby  be- 
come a  part  of  this  constitution.  The  votes  for  and  against  such  amend- 
ment or  amendments,  severally,  whether  proposed  by  the  legislative 
assembly  or  by  initiative  petition,  shall  be  canvassed  by  the  secretary  of 
state  in  the  presence  of  the  governor,  and  if  it  shall  appear  to  the  gov- 
ernor that  the  majority  of  the  votes  cast  at  said  election  on  said  amend- 
ment or  amendments,  severally,  are  cast  in  favor  thereof,  it  shall  be  his 
duty  forthwith  after  such  canvass,  by  his  proclamation,  to  declare  the 
said  amendment  or  amendments,  severally,  having  received  said  majority 
of  votes,  to  have  been  adopted  by  the  people  of  Oregon  as  part  of  the 
constitution  thereof,  and  the  same  shall  be  in  effect  as  a  part  of  the  con- 
stitution from  the  date  of  such  proclamation.  When  two  or  more  amend- 
ments shall  be  submitted  in  the  manner  aforesaid  to  the  voters  of  this 
state,  at  the  same  election,  they  shall  be  so  submitted  that  each  amend- 
ment shall  be  voted  on  separately.  No  convention  shall  be  called  to 
amend  or  propose  amendments  to  this  constitution,  or  to  propose  a  new 
constitution,  unless  the  law  providing  for  such  convention  shall  first  be 
approved  by  the  people  on  a  referendum  vote  at  a  regular  general  election. 
This  article  shall  not  be  construed  to  impair  the  right  of  the  people  to 
amend  this  constitution  by  vote  upon  an  initiative  petition  therefor. 

The  above  section,  which  takes  the  place  of  the  original  Sections  1  and  2,  was 
proposed  by  initiative  petition,  filed  in  the  office  of  the  secretary  of  state  February 
3,  1906,  and  adopted  by  vote  of  the  people,  47,661  for,  and  18,751  against,  June  4, 
1906.    It  went  into  effect  upon  proclamation  of  the  governor  June  25,  1906. 


STATUTORY  PROVISIONS. 

Direct  Legislation  Elections. 

§  3470.    Form  of  Petition  for  Referendum. 
The  following  shall  be  substantially  the  form  of  petition  for  the  refer- 
endum to  the  people  on  any  act  passed  bj^  the  legislative  assembly  of  the 
state  of  Oregon,  or  by  a  city  council : 

Warning 

It  is  a  felony  for  any  one  to  sign  any  initiative  or  referendum  petition  with  any 
other  name  than  his  own,  or  to  knowingly  sign  his  more  than  once  for  the  same 
measure,  or  to  sign  such  petition  when  he  is  not  a  legal  voter. 

Petition  for  Referendum 

To  the  Honorable ■ — •,  secretary  of  state  for  the  state  of  Oregon  (or  to  the 

Honorable  — ■ ,  clerk,  auditor  or  recorder,  as  the  case  may  be,  of  the 

city  of ) : 

We,  the  undersigned  citizens  and  legal  voters  of  the  state  of  Oregon  (and  the 

district  of  — ■ — ,  county  of ,  or  city  of ,  as  the  case  may  be), 

respectfully  order  that  the  senate  (or  house)  bill  No. ,  entitled  (title  of  act,  and 


228 

if  the  petition  is  against  less  than  the  whole  act  then  set  forth  here  the  part  or  parts 

on  which  the  referendum  is  sought),  passed  by  the legislative  assembly 

of  the  state  of  Oregon,  at  the  regular  (special)  session  of  said  legislative  assembly, 

shall  be  referred  to  the  people  of  the  state  (district  of ,  county  of , 

or  city  of ,  as  the  case  may  be),  for  their  approval  or  rejection,  at  the  reg- 
ular (special)  election  to  be  held  on  the ■  day  of ,  A.  D.  19 — ,  and 

each  for  himself  says:  I  have  personally  signed  this  petition;  I  am  a  legal  voter  of 

the  state  of  Oregon,  and  (district  of ,  county  of ,  city  of , 

as  the  case  may  be) ;  my  residence  and  postoffice  are  correctly  written  after  my 
name. 

Name    ,    Residence    ,     PostofSce 

(If  in  a  city,  street  and  number) 
(Here  follow  twenty  numbered  lines  for  signatures) 

§  8471 .    Form  of  Initiative  Petition. 
The  following  shall  be  substantially  the  form  of  petition  for  any  law, 
amendment  to  the  constitution  of  the  state  of  Oregon,  city  ordinance  or 
amendment  to  a  city  charter,  proposed  by  the  initiative : 

Warning 

It  is  a  felony  for  any  one  to  sign  any  initiative  or  referendum  petition  with  any 
other  name  than  his  own,  or  to  knowingly  sign  his  name  more  than  once  for  the 
same  measure,  or  to  sign  such  petition  when  he  is  not  a  legal  voter. 

Initiative  Petition 

To  the  Honorable ,  secretary  of  state  for  the  state  of  Oregon  (or  to  the 

Honorable ,  clerk,  auditor  or  recorder,  as  the  case  may  be,  for  the 

city  of ) ; 

We,  the  undersigned  citizens  and  legal  voters  of  the  state  of  Oregon  (and  of  the 

district  of  — — ,  county  of  — ■ — ■ ,  or  city  of ,  as  the  case  may  be) , 

respectfully  demand  that  the  following  proposed  law  (or  amendment  to  the  consti- 
tution, ordinance,  or  amendment  to  the  city  charter,  as  the  case  may  be),  shall  be 

submitted  to  the  legal  voters  of  the  state  of  Oregon  (district  of ,  county 

of ,  or  city  of ,  as  the  case  may  be),  for  their  approval  or  rejec- 
tion at  the  regular  general  election,  or  (regular  or  special  city  election),  to  be  held  on 
the day  of ,  A.  D.  19 — ,  and  each  for  himself  says:  I  have  per- 
sonally signed  this  petition;  I  am  a  legal  voter  of  the  state  of  Oregon  (and  of  the  dis- 
trict of ,  county  of ,  city  of ,  as  the  case  may  be) ;  my 

residence  and  postoffice  are  correctly  written  after  my  name. 

Name  ,     Residence  ,     Postoffice  

(If  in  a  city,  street  and  number) 
(Here  follow  twenty  numbered  lines  for  signatures) 

§  3472.    Further  of  Petitions  —  Filing  and  Procedure  Thereon  —  Measures 

Excepted. 
Before  or  at  the  time  of  beginning  to  circulate  any  petition  for  the 
referendum  to  the  people  on  any  act  passed  by  the  legislative  assembly 
of  the  state  of  Oregon,  or  for  any  law,  amendment  to  the  constitution  of 
the  state  of  Oregon,  city  ordinance  or  amendment  to  a  city  charter,  pro- 
posed by  the  initiative,  the  person  or  persons  or  organization  or  organiza- 
tions under  whose  authority  the  measure  is  to  be  referred  or  initiated 


229 

shall  send  or  deliver  to  the  secretary  of  state,  or  city  clerk,  recorder  or 
auditor,  as  the  case  may  be,  a  copy  of  such  petition  duly  signed  which 
shall  be  filed  by  said  officer  in  his  office,  who  shall  immediately  examine 
the  same  and  specify  the  form  and  kind  and  size  of  paper  on  which  such 
petition  shall  be  printed  for  circulation  for  signatures. 

To  every  sheet  of  petitioners'  signatures  shall  be  attached  a  full  and 
correct  copy  of  the  measure  so  proposed  by  initiative  petition;  but  such 
petition  may  be  filed  by  the  secretary  of  state  in  numbered  sections  for 
convenience  in  handling.  Each  sheet  of  petitioners'  signatures  upon 
referendum  petitions  shall  be  attached  to  a  full  and  correct  copy  of  the 
measure  on  which  referendum  is  demanded  and  may  be  filed  in  numbered 
sections  in  like  manner  as  initiative  petitions.  Not  more  than  twenty 
signatures  on  one  sheet  shall  be  counted.  When  any  such  initiative  or 
referendum  petition  shall  be  offered  for  filing  the  secretary  of  state  shall 
detach  the  sheets  containing  the  signatures  and  aflfida\'its  and  cause  them 
all  to  be  attached  to  one  or  more  printed  copies  of  the  measure  so  pro- 
posed by  initiative  or  referendum  petitions;  provided,  all  petitions  for 
the  initiative  and  for  the  referendum  and  sheets  for  signatures  shall  be 
printed  on  a  good  quaUty  of  bond  or  ledger  paper  on  pages  eight  and  a 
half  inches  in  width  by  thirteen  inches  in  length,  with  a  margin  of  one 
and  three-fourths  inches  at  the  top  for  binding;  if  the  aforesaid  sheets 
shall  be  too  bulky  for  convenient  binding  in  one  volume,  they  may  be 
bound  in  two  or  more  volumes,  those  in  each  volume  to  be  attached  to  a 
single  printed  copy  of  such  measure.  If  any  such  measure  shall,  at  the 
ensuing  election,  be  approved  by  the  people,  then  the  copies  thereof  so 
preserved,  with  the  sheets  and  signatures  and  affidavits,  and  a  certified 
copj"  of  the  governor's  proclamation  declaring  the  same  to  have  been  ap- 
proved by  the  people,  shall  be  bound  together  in  such  form  that  they  may 
be  conveniently  identified  and  preserved.  The  secretary  of  state  shall 
cause  every  such  measure  so  approved  by  the  people  to  be  printed  with 
the  general  laws  enacted  by  the  next  ensuing  session  of  the  legislative 
assembly,  with  the  date  of  the  governor's  proclamation  declaring  the 
same  to  have  been  approved  by  the  people.  This  act  shall  not  apply  to 
the  general  laws  governing  the  method  of  determining  whether  stock  of 
any  kind  shall  be  permitted  to  run  at  large  in  any  county  or  portion 
thereof,  nor  to  the  provisions  of  the  local  option  liquor  laws  providing 
methods  of  determining  whether  the  sale  of  intoxicating  hquors  shall  be 
prohibited  in  any  county,  city,  precinct,  ward  or  district.  [L.  1913, 
Chap.  359,  p.  743.] 

§  3473.     Verification  of  Petition. 

Each  and  every  sheet  of  every  such  petition  containing  signatures  shall 
be  verified  on  the  face  thereof  in  substantially  the  following  form  by  the 
person  who  circulated  said  sheet  of  said  petition,  by  his  or  her  affidavit 
thereon,  and  as  a  part  thereof: 


230 

State  of  Oregon,  1 

County  of / 

1,  ,  being  first  duly  sworn,  say:     That  every  person  who  signed  this 

sheet  of  the  foregoing  petition  signed  his  or  her  name  thereto  in  my  presence;  I 
beheve  that  each  has  stated  his  or  her  name,  postofiice  address  and  residence  cor- 
rectly, and  that  each  signer  is  a  legal  voter  of  the  state  of  Oregon  and  county 

of . 

(Signature  and  postoffice  address  of  affiant.) 

Subscribed  and  sworn  to  before  me  this day  of ,  A.  D.  19 — . 

(Signature  and  title  of  ofiicer  before  whom  oath  is  made  and  his  postoffice 
address.) 

In  addition  to  said  affidavit  the  county  clerk  of  each  county  in  which 
any  such  petition  shall  be  signed  shall  compare  the  signatures  of  the 
electors  signing  the  same  with  the  signatures  of  the  registration  cards, 
books  and  blanks  on  file  in  his  office,  shall  carefully  examine  said  petition 
and  shall  attach  to  the  sheets  of  said  petition  containing  such  signatures, 
his  certificate  to  the  secretary  of  state,  substantially  as  follows : 

State  of  Oregon,  "1 

County  of J 


To  the  Honorable ,  secretary  of  state  of  the  state  of  Oregon: 

I,  county  clerk  of  the  county  of ,  hereby  certify  that  I  have  compared 

the  signatures  on  (number  of  sheets)  of  the  referendum  (initiative)  petition  attached 
hereto,  -n-ith  the  signatures  of  said  electors  as  they  appear  on  the  registration 
cards,  books  and  blanks  in  my  office,  and  from  such  information  as  I  have  been 
able  to  obtain  I  believe  that  the  signatures  of  (names  of  signers)  numbering  (num- 
ber of  genuine  signatures)  are  genuine.     As  to  the  remainder  of  the  signatures 

thereon,  I  believe  they  are  not  genuine,  except  that  the  following  names  ( ) 

do  not  appear  on  the  registration  cards,  books  and  blanks  in  my  office. 

(Signed)  (County  Clerk.) 

(Seal  of  office)  (Deputy.) 

Every  such  certificate  shall  be  prima  facie  evidence  of  the  facts  stated 
therein  and  of  the  quahfications  of  the  electors  whose  signatures  are  thus 
certified  to  be  genuine,  and  the  secretary  of  state  shall  consider  and  count 
only  such  signatures  on  such  petitions  as  shall  be  so  certified  by  said 
county  clerk  to  be  genuine;  provided,  that  the  secretary  of  state  shall 
consider  and  count  such  of  the  remaining  signatures  as  shall  be  proved  to 
be  genuine  signatures  of  legal  voters.  To  establish  such  facts,  the  official 
certificate  of  a  notarj^  public  of  the  county  in  which  the  signer  resides 
shall  be  required  as  to  the  facts  for  each  of  such  last-named  signatures. 

State  of  Oregon,  \ 

County  of / 

I, ,  a  duly  qualified  and  acting  notary  public  in  and  for  the  above- 
named  county  and  state,  do  hereby  certify:  That  I  am  personally  acquainted 
with  each  of  the  following  named  electors  whose  signatures  are  affixed  to  the  an- 
nexed petition  and  I  know  of  my  own  knowledge  that  they  are  legal  voters  of  the 
state  of  Oregon  and  of  the  county  written  after  their  several  names  in  the  annexed 
petition,  and  that  their  residence  and  postoffice  address  is  correctly  stated  therein, 
to  wit:  (Names  of  such  electors.) 

In  testimony  whereof  I  have  hereunto   set  my  hand   and   official  seal  this 

day  of ,  19—. 

(Notary  Public  for  Oregon.) 


231 

The  county  clerk  shall  not  retain  in  his  possession  any  such  petition 
or  any  part  thereof  for  a  longer  period  than  two  days  for  the  first  200 
signatures  thereon,  and  one  additional  daj^  for  each  200  additional  signa- 
tures or  fraction  thereof,  on  the  sheets  presented  to  hun,  and  at  the  expira- 
tion of  such  time  he  shall  deliver  the  same  to  the  person  from  whom  he 
received  it,  with  his  certificate  attached  thereto  as  above  provided.  The 
forms  herein  given  are  not  mandatory  and  if  substantially  followed  in  any 
petition,  it  shall  be  sufficient,  disregarding  clerical  and  merely  technical 
errors.  [L.  1913,  Chap.  359,  p.  744;  L.  1917,  Chap.  176,  Sec,  1,  pp. 
22&-230.] 

§  5^74.    Mandamus  to  Compel  Filing  —  Jurisdiction  and  Procedure. 

If  the  secretary  of  state  shall  refuse  to  accept  and  file  any  petition  for 
the  initiative  or  for  the  referendum  any  citizen  ma}"-  apply,  within  ten 
days  after  such  refusal,  to  the  circuit  court  for  a  writ  of  mandamus  to  com- 
pel him  to  do  so.  If  it  shall  be  decided  by  the  court  that  such  petition  is 
legallj'  sufficient,  the  secretary  of  state  shall  then  file  it,  with  a  certified 
copy  of  the  judgment  attached  thereto,  as  of  the  date  on  which  it  was 
originally  offered  for  fiUng  in  his  office.  On  a  showing  that  Qx\y  petition 
filed  is  not  legally  sufficient,  the  court  may  enjoin  the  secretary  of  state 
and  all  other  officers  from  certifying  or  printing  on  the  official  ballot  for 
the  ensuing  election  the  baUot  title  and  numbers  of  such  measure.  All 
such  suits  shall  be  advanced  on  the  court  docket  and  heard  and  decided 
by  the  court  as  quickly  as  possible.  Either  party  may  appeal  to  the 
supreme  court  within  ten  days  after  a  decision  is  rendered.  The  circuit 
court  of  Marion  county  shall  have  jurisdiction  in  aU  cases  of  measures 
to  be  submitted  to  the  electors  of  the  state  at  large;  in  cases  of  local  and 
special  measures,  the  circuit  court  of  the  county,  or  of  one  of  the  counties 
in  which  such  measures  are  to  be  voted  upon,  shall  have  jurisdiction;  in 
cases  of  municipal  legislation  the  circuit  court  of  the  county  in  which  the 
city  concerned  is  situated  shall  have  jurisdiction. 

§  3475.  Attorney  General  to  Frame  Ballot  Title  —  Appeal. 
WTien  a  copy  of  the  petition  for  anj''  measure  to  be  referred  to  the 
people  of  the  state,  or  of  anj'-  county  or  district  composed  of  one  or  more 
counties,  either  by  the  initiative  or  the  referendum,  shall  be  filed  with  the 
secretary  of  state,  as  pro\dded  in  Section  3472,  Lord's  Oregon  Laws  as 
amended  bj^  Chapter  359,  General  Laws  of  Oregon  of  1913,  or  when  the 
submission  to  the  people  of  any  proposed  constitutional  amendment  or 
measure  shall  be  ordered  by  the  legislative  assembly,  the  secretary  of  state 
shall  forthwith  transmit  two  copies  thereof  to  the  attorney  general  of  the 
state.  Within  ten  days  after  receiving  said  copies  the  attorne}'  general 
shall  pro\ide  a  ballot  title  therefor  and  return  it  to  the  secretary  of  state, 
together  with  the  ballot  title  (for  said  measure)  so  prepared  by  him.  A 
copy  of  the  ballot  title  as  prepared  by  the  attorney  general  shall  be  fur- 
nished bj^  the  secretary  of  state  with  his  approved  form  of  any  initiative 


232 

or  referendum  petition,  as  provided  in  Section  3472,  Lord's  Oregon  Laws, 
as  amended,  to  the  person  or  persons  or  organization  or  organizations 
under  whose  authority  the  measure  is  initiated  or  referred.  Said  ballot 
title  shall  be  used  and  printed  on  the  covers  of  the  petition  when  in  circu- 
lation, the  short  title  shall  be  printed  in  type  not  less  than  twenty  points 
on  the  covers  of  all  such  petitions  circulated  for  signatures.  The  ballot 
title  shall  contain:  (1)  The  name  or  names  of  the  person  or  persons, 
organization  or  organizations  under  whose  authority  the  measure  is  to 
be  initiated  or  referred.  (2)  A  distinctive  short  title  not  exceeding  ten 
words  bj^  which  the  measure  is  commonly  referred  to  or  spoken  of  and 
which  shall  be  printed  in  the  foot  margin  of  each  signature  sheet  of  the 
petition.  (3)  A  general  title  which  may  be  distinct  from  the  legislative 
title  of  the  measure,  expressing  in  not  more  than  one  hundred  words  the 
purpose  of  the  measure.  The  ballot  title  shall  be  printed  with  the  num- 
bers of  the  measure  on  the  official  ballot.  In  making  such  ballot  title  the 
attorney  general  shall  to  the  best  of  his  ability  give  a  true  and  impartial 
statement  of  the  purpose  of  the  measure  and  in  such  language  that  the 
ballot  title  shall  not  be  intentionally  an  argument  or  likely  to  create  preju- 
dice either  for  or  against  the  measure.  Any  person  who  is  dissatisfied 
with  the  ballot  title  or  the  short  title  provided  by  the  attorney  general  for 
any  measure,  may  appeal  from  the  decision  of  the  circuit  court  as  provided 
by  Section  3474  by  petition,  praying  for  a  different  title  and  setting  forth 
the  reason  why  the  title  prepared  by  the  attorney  general  is  insufficient  or 
unfair.  Xo  appeal  shall  be  allowed  from  the  decision  of  the  attorney 
general  on  a  ballot  title  unless  the  same  is  taken  within  twenty  days  after 
said  ballot  title  is  filed  in  the  office  of  the  secretary  of  state.  A  copy  of 
every  such  ballot  title  shall  be  served  by  the  secretary  of  state  or  clerk  of 
the  court,  upon  the  person  offering  or  filing  such  initiative  or  referendum 
petition,  or  appeal.  The  service  of  such  decision  may  be  by  mail  or  tele- 
graph, and  shall  be  made  forthwith  when  it  is  received  from  the  attorney 
general  by  the  secretary  of  state.  Said  circuit  court  shall  thereupon 
examine  said  measure,  hear  arguments,  and  in  its  decision  thereon  certify 
to  the  secretarj'  of  state  a  ballot  title  and  a  short  title  for  the  measure  in 
accord  with  the  intent  of  this  section.  The  decision  of  the  circuit  court 
shall  be  final.  The  secretary  of  state  shall  print  on  the  official  baUot  the 
titles  thus  certified  to  him.  [L.  1913,  Chap.  36,  p.  67;  L.  1917,  Chap. 
176,  Sec.  2,  pp.  230,  231.] 

§  SJ^76.  Designation  and  Numbering  of  Measures. 
The  secretary  of  state,  at  the  time  he  furnishes  to  the  county  clerks 
of  the  several  counties  certified  copies  of  the  names  of  the  candidates  for 
state  and  district  offices,  shall  furnish  to  each  of  said  county  clerks  his 
certified  copy  of  the  ballot  titles  and  numbers  of  the  several  measures  to  be 
voted  upon  at  the  ensuing  general  election,  and  he  shaU  use  for  each 
measure  the  ballot  title  designated  in  the  manner  herein  provided.  Such 
ballot  title  shall  not  resemble,  so  far  as  to  probably  create  confusion,  any 


233 

such  title  previously  filed  for  any  measure  to  be  submitted  at  that  elec- 
tion; he  shall  number  such  measures  and  such  ballot  titles  shall  be  printed 
on  the  official  ballot  in  the  order  in  which  the  acts  referred  by  the  legisla- 
tive assembly  and  petitions  by  the  people  shall  be  filed  in  his  office.  The 
affirmative  of  the  first  measure  shall  be  numbered  300  and  the  negative 
301  in  numerals,  and  the  succeeding  measures  shall  be  numbered  con- 
secutively 302,  303,  304,  305,  and  so  on,  at  each  election.  It  shall  be  the 
duty  of  the  several  count}'  clerks  to  print  said  ballot  titles  and  numbers 
upon  the  official  ballot  in  the  order  presented  to  them  by  the  secretary  of 
state  and  the  relative  position  required  by  law.  Measures  referred  by  the 
legislative  assembly  shall  be  designated  by  the  heading  "Referred  to  the 
People  by  the  Legislative  Assembly;"  measures  referred  by  petition  shall 
be  designated  "Referendum  Ordered  by  Petition  of  the  People;"  meas- 
ures proposed  by  initiative  petition  shaU  be  designated  and  distinguished 
on  the  ballot  by  the  heading  "Proposed  by  Initiative  Petition."  [L.  1913, 
Chap.  359,  p.  745.] 

§  3477.  Manner  of  Voting  —  Result,  How  Determined. 
The  manner  of  voting  upon  measures  submitted  to  the  people  shall  be 
the  same  as  is  now  or  may  be  required  and  proiided  b}^  law;  no  measure 
shall  be  adopted  unless  it  shall  receive  an  affirmative  majority  of  the  total 
number  of  respective  votes  cast  on  such  measure  and  entitled  to  be  counted 
under  the  provisions  of  this  act;  that  is  to  say,  supposing  70,000  ballots 
to  be  properly  marked  on  any  measure,  it  shall  not  be  adopted  unless  it 
shall  receive  more  than  35,000  affirmative  votes.  If  two  or  more  con- 
flicting laws  shall  be  approved  by  the  people  at  the  same  election,  the  law 
recei"ving  the  greatest  number  of  affirmative  votes  shall  be  paramount  in 
aU  particulars  as  to  which  there  is  a  conflict,  even  though  such  law  may 
not  have  received  the  greatest  majority  of  affirmative  votes.  If  two  or 
more  conflicting  amendments  to  the  constitution  shaU  be  approved  by  the 
people  at  the  same  election,  the  amendment  which  receives  the  greatest 
number  of  affirmative  votes  shall  be  paramount  in  all  particulars  as  to 
which  there  is  conflict,  even  though  such  amendment  may  not  have  re- 
ceived the  greatest  majority  of  affirmative  votes. 

§  3478.  Measures  and  Arguments  to  Be  Printed  and  Distributed. 
Not  later  than  the  ninetieth  day  before  any  regular  general  election, 
nor  later  than  thkty  days  before  anj'  special  election,  at  which  any  pro- 
posed law,  part  of  an  act  or  amendment  to  the  constitution  is  to  be  sub- 
mitted to  the  people,  the  secretary  of  state  shall  cause  to  be  printed  in 
pamphlet  form  a  true  copy  of  the  title  and  text  of  each  measure  to  be  sub- 
mitted, with  the  number  and  form  in  which  the  ballot  title  thereof  will  be 
printed  on  the  official  ballot.  The  person,  committee  or  duly  organized 
ofiicers  of  any  organization  filing  any  petition  for  the  initiative,  but  no 
other  person  or  organization,  shall  have  the  right  to  file  with  the  secretary 


234 

of  state  for  printing  and  distribution  anj^  argument  advocating  such  meas- 
ure; said  argument  shall  be  filed  not  later  than  the  one  hundred  and  fif- 
teenth day  before  the  regular  election  at  which  the  measure  is  to  be  voted 
upon.  Any  person,  committee  or  organization  may  file  with  the  secretary 
of  state,  for  printing  and  distribution,  any  arguments  the}'  may  desire, 
opposing  any  measure,  not  later  than  the  one  hundred  and  fifth  day  im- 
mediately preceding  such  election.  Arguments  advocating  or  opposing 
any  measure  referred  to  the  people  by  the  legislative  assembly,  or  by  ref- 
erendum petition,  at  a  regular  general  election,  shall  be  governed  by  the 
same  rules  as  to  time,  but  may  be  filed  with  the  secretary  of  state  by  any 
person,  committee  or  organization;  in  the  case  of  measures  submitted  at 
a  special  election,  all  arguments  in  support  of  such  measure  at  least  sixty 
days  before  such  election.  But  in  every  case  the  person  or  persons  offer- 
ing such  arguments  for  printing  and  distribution  shall  pay  to  the  secre- 
tar}'  of  state  sufficient  money  to  paj^  aU  the  expenses  for  paper  and  print- 
ing to  supply  one  copA'  with  every  cop}'  of  the  measure  to  be  printed  by  the 
state;  and  he  shall  forthwith  notify  the  persons  offering  the  same  of  the 
amount  of  money  necessary.  The  secretary  of  state  shall  cause  one  copy 
of  each  of  said  arguments  to  be  bound  in  the  pamphlet  copy  of  the  meas- 
ures to  be  submitted  as  herein  provided,  and  all  such  measures  and  argu- 
ments to  be  submitted  at  one  election  shall  be  bound  together  in  a  single 
pamphlet.  AU  the  printing  shall  be  done  by  the  state,  and  the  pages  of 
said  pamphlet  shall  be  numbered  consecutively  from  one  to  the  end.  The 
pages  of  said  pamphlet  shall  be  six  by  nine  inches  in  size,  and  the  printed 
matter  therein  shall  be  set  in  six-point  Roman-faced  sohd  type  on  not  to 
exceed  seven  point  body,  in  two  columns  of  thirteen  ems  in  width  each  to 
the  page,  with  six-point  dividing  rule  and  with  appropriate  heads,  and 
printed  on  a  good  quahty  of  book  paper  twenty-five  by  thirty-eight  inches, 
weighing  not  more  than  fifty  pounds  to  the  ream.  The  title  page  of  every 
measure  bound  in  said  pamphlet  shaU  show  its  ballot  title  and  ballot  num- 
ber. The  title  page  of  each  argument  shall  show  the  measure  or  measures 
it  favors  or  opposes  and  by  what  persons  or  organization  it  is  issued. 
When  such  arguments  are  printed  he  shall  pay  the  state  printer  therefor 
from  the  money  deposited  with  him  and  refund  the  surplus,  if  any,  to  the 
parties  who  paid  it  to  him.  The  cost  of  printing,  binding  and  distributing 
the  measures  proposed  and  of  binding  and  distributing  the  arguments, 
shaU  be  paid  by  the  state  as  a  part  of  the  state  printing,  it  being  intended 
that  only  the  cost  of  paper  and  printing  the  arguments  shall  be  paid  by 
the  parties  presenting  the  same,  and  they  shall  not  be  charged  any  higher 
rate  for  such  work  than  is  paid  by  the  state  for  similar  work  and  paper. 
Not  later  than  the  fifty-fifth  day  before  the  regular  general  election  at 
which  such  measures  are  to  be  voted  upon  the  secretary  of  state  shall 
transmit  by  mail,  with  postage  fuUy  prepaid,  to  every  voter  in  the  state, 
whose  address  he  may  have,  one  copy  of  such  pamphlet;  provided,  that 
if  the  secretary  shall,  at  or  about  the  same  time  be  maihng  any  other 
pamphlet  to  every  voter,  he  may,  if  practicable,  bind  the  matter  herein 


235 

provided  for  in  the  first  part  of  said  pamphlet,  numbering  the  pages  of 
the  entire  pamphlet  consecutively  from  one  to  the  end,  or  he  may  enclose 
the  pamphlets  under  one  cover.  In  case  of  a  special  election  he  shall 
mail  said  pamphlet  to  every  voter  not  less  than  twenty  daj^s  before  said 
special  election,    [L.  1913,  Chap.  359,  p.  745.] 

§  3479.  Counting  and  Canvass  —  Proclamation  of  Result. 
The  votes  on  measures  and  questions  shall  be  counted,  canvassed  and 
returned  bj'  the  regular  boards  of  judges,  clerks  and  officers,  as  votes  for 
candidates  are  counted,  canvassed  and  returned,  and  the  abstract  made  by 
the  several  county  clerks  of  votes  on  measures  shall  be  returned  to  the 
secretarj^  of  state  on  separate  abstract  sheets,  in  the  manner  provided  by 
Section  3419,  for  abstracts  of  votes  for  state  and  county  officers.  It  shaU 
be  the  duty  of  the  secretarj^  of  state  in  the  presence  of  the  governor,  to 
proceed  within  thirty  days  after  the  election,  and  sooner  if  the  returns  be 
all  received,  to  canvass  the  votes  given  for  each  measure,  and  the  governor 
shall  forth^vith  issue  his  proclamation,  giving  the  whole  number  of  votes 
cast  in  the  state  for  and  against  each  measure  and  question,  and  declaring 
such  measures  as  are  approved  bj^  majority  of  those  voting  thereon  to  be 
in  full  force  and  effect  as  the  law  of  the  state  of  Oregon  from  the  date  of 
said  proclamation;  pro\aded,  that  if  two  or  more  measures  shall  be  ap- 
proved at  said  election  which  are  known  to  conflict  with  each  other  or  to 
contain  conflicting  provisions  he  shall  also  proclaim  which  is  paramount 
in  accordance  with  the  pro\'isions  of  Section  3477. 

§  3480.  Procedure  in  Cities  and  Towns. 
In  all  cities  and  toTvms  which  have  not  or  may  not  provide  by  ordinance 
or  charter  for  the  manner  of  exercising  the  initiative  and  referendum 
powers  reserved  by  the  constitution  to  the  people  thereof,  as  to  their  munic- 
ipal legislation,  the  duties  required  of  the  secretary  of  state  by  this  act, 
as  to  state  legislation,  shall  be  performed  as  to  such  municipal  legislation 
by  the  city  auditor,  clerk  or  recorder,  as  the  case  may  be;  the  duties 
required  by  the  governor  shall  be  performed  by  the  mayor  as  to  such 
municipal  legislation,  and  the  duties  required  by  this  act  of  the  attorney 
general  shall  be  performed  by  the  city  attorney  as  to  such  municipal  legis- 
lation. The  provisions  of  this  act  shall  apply  in  every  city  and  town  in 
all  matters  concerning  the  operation  of  the  initiative  and  referendum  in 
its  municipal  legislation  on  which  such  city  or  town  has  not  made  or  does 
not  make  conflicting  pro-\dsions.  The  printing  and  binding  of  measures 
and  arguments  in  municipal  legislation  shall  be  paid  for  by  the  city  in 
like  manner  as  paj-rnent  is  provided  for  by  the  state  as  to  state  legisla- 
tion by  Section  3478,  and  said  printing  shall  be  done  in  the  same  manner 
that  other  municipal  printing  is  done;  distribution  of  said  pamphlets 
shall  be  made  to  every  voter  in  the  city,  so  far  as  possible,  by  the  city  clerk, 
auditor  or  recorder,  as  the  case  may  be,  either  by  mail  or  carrier,  not  less 


236 

than  eight  days  before  the  election  at  which  the  measures  are  to  be  voted 
upon.  Arguments  supporting  municipal  measures  shall  be  filed  with  the 
city  clerk,  auditor  or  recorder,  not  less  than  thirty  days  before  the  elec- 
tion at  which  they  are  to  be  voted  upon;  opposing  arguments  shall  be 
filed  not  less  than  twenty  days  before  said  election.  It  is  intended  to 
make  the  procedure  in  municipal  legislation  as  nearly  as  practicable  the 
same  as  the  initiative  and  referendum  procedure  for  measures  relating  to 
the  people  of  the  state  at  large. 

§  8481.    Signatures  Required  on  Referendum  —  When  City  Registration  to 

Take  Effect. 
Referendum  petitions  against  any  ordinance,  franchise  or  resolution 
passed  by  a  city  council  shall  be  signed  by  not  less  than  ten  per  cent  of  the 
voters  of  said  city,  and  said  signatures  shall  be  verified  in  the  manner 
herein  provided;  the  petition  shall  be  filed  with  the  city  clerk,  auditor, 
or  recorder,  as  the  case  may  be,  within  thirty  days  after  the  passage  of 
such  ordinance,  resolutions  or  franchise.  No  city  ordinance,  resolution, 
or  franchise  shall  take  effect  and  become  operative  until  thirty  days  after 
its  passage  by  the  councU  and  apiDroved  by  the  maj^or,  unless  the  same 
shall  be  passed  over  his  veto,  and  in  that  case  it  shall  not  take  effect  and 
become  operative  until  thirty  days  after  such  final  passage,  except  meas- 
ures necessary  for  the  immediate  preservation  of  the  peace,  health  or 
safety  of  the  city;  and  no  such  emergency  measure  shall  become  imme- 
diately operative  unless  it  shall  state  in  a  separate  section  the  reasons  why 
it  is  necessary  that  it  should  become  immediately  operative,  and  shall  be 
approved  by  the  affirmative  vote  of  three-fourths  of  all  the  members 
elected  to  the  city  council,  taken  by  ayes  and  noes,  and  also  approved  by 
the  mayor. 

§  3Ji.82.  Initiative  Measures  in  Cities. 
If  any  ordinance,  charter  or  amendment  to  the  charter  to  any  city 
shall  be  proposed  by  initiative  petition,  said  petition  shall  be  filed  with 
the  city  clerk,  auditor  or  recorder,  as  the  case  may  be,  and  he  shall  trans- 
mit it  to  the  next  session  of  the  city  council.  The  council  shall  either 
ordain  or  reject  the  same,  as  proposed,  within  thirty  days  thereafter,  and 
if  the  council  shall  reject  said  proposed  ordinance  or  amendment,  or  shall 
take  no  action  thereon,  then  the  city  clerk,  auditor  or  recorder,  as  the  case 
may  be,  shall  submit  the  same  to  the  voters  of  the  city  or  town  at  the 
next  ensuing  election  held  therein  not  less  than  ninety  days  after  the  same 
was  first  presented  to  the  city  council.  The  council  may  ordain  said 
ordinance  or  amendment  and  refer  it  to  the  people,  or  it  may  ordain  such 
ordinance  without  referring  it  to  the  people,  and  in  that  case  it  shall  be 
subject  to  referendum  petition  in  like  manner  as  other  ordinances;  if  the 
council  shall  reject  said  ordinance  or  amendment,  or  take  no  action  thereon, 
it  may  ordain  a  competing  ordinance  or  amendment,  which  shall  be  sub- 
mitted by  the  city  clerk,  auditor  or  recorder,  as  the  case  may  be,  to  the 


237 

people  of  said  city  or  town,  at  the  same  election  at  which  said  initiative 
proposal  is  submitted.  Such  competing  ordinance  or  amendment,  if  anj^, 
shall  be  prepared  by  the  council  and  ordained  within  thirty  days  allowed 
for  its  action  on  the  measure  proposed  by  initiative  petition.  The  mayor 
shall  not  have  power  to  veto  either  of  such  measures.  If  conflicting  ordi- 
nances or  charter  amendments  shall  be  submitted  to  the  people  at  the  same 
election,  and  two  or  more  of  such  conflicting  measures  shall  be  approved 
by  the  people,  then  the  measure  which  shall  have  received  the  greatest 
number  of  affirmative  votes  shall  be  paramount  in  all  particulars  as  to 
which  there  is  a  conflict,  even  though  such  measure  may  not  have  received 
the  greatest  majority.  Amendments  to  any  city  charter  may  be  proposed 
and  submitted  to  the  people  by  the  city  council,  with  or  without  an  initia- 
tive petition,  but  the  same  shall  be  filed  with  the  city  clerk  for  submission 
not  less  than  sixty  days  before  the  election  at  which  they  are  to  be  voted 
upon,  and  no  amendment  of  a  city  charter  shall  be  effective  until  it  is 
approved  by  a  majority  of  the  votes  cast  thereon  by  the  people  of  the  city 
or  town  to  which  it  appHes.  The  city  council  may  by  ordinance  order 
special  elections  to  vote  on  municipal  measures. 


§  S483.  Qualifications  of  Signers  of  Petitions  —  Penalties. 
Every  person  who  is  a  quaUfied  elector  of  the  state  of  Oregon  may 
sign  a  petition  for  the  referendum  or  for  the  initiative  for  any  measure 
which  he  is  legally  entitled  to  vote  upon.  Any  person  signing  any  name 
other  than  his  own  to  any  petition,  or  knowingly  signing  his  name  more 
than  once  for  the  same  measure  at  one  election,  or  who  is  not  at  the  time 
of  signing  the  same  a  legal  voter  of  this  state,  or  any  oflScer  or  person 
wilfully  violating  any  provision  of  this  statute,  shall,  upon  conviction 
thereof,  be  punished  by  a  fuie  not  exceeding  $500.00,  or  by  imprisonment  in 
the  penitentiary  not  exceeding  two  years,  or  by  both  such  fine  and  im- 
prisonment, in  the  discretion  of  the  court  before  which  such  conviction 
shall  be  had. 


§  3434.  Referendum  on  Laws  Affectiiig  County  or  District. 
That  any  law  enacted  by  the  legislative  assembly,  relating  only  to  any 
county  or  district  in  the  state  of  Oregon,  other  than  municipal  corporations, 
may  be  referred  to  the  people  of  such  county  or  district  for  their  approval 
or  rejection  in  the  same  manner  as  now  or  hereafter  provided  by  law  for 
the  reference  of  general  laws  to  the  people  of  the  entire  state,  excepting 
that  when  any  law  relates  only  to  one  county  the  county  clerk  shall  be 
substituted  for  the  secretary  of  state,  the  district  attorney  for  the  attorney 
general,  and  the  county  judge  for  the  governor.  When  any  law  affects 
any  district  consisting  of  more  than  one  county,  it  shaU  be  referred  in 
the  manner  provided  for  the  reference  of  acts  affecting  the  entire  state, 
except  that  the  petition  therefor  shall  be  signed  only  by  the  voters  of 


238 

such  district,  and  in  both  counties  and  districts  the  percentage  shall  be 
computed  on  the  vote  at  the  preceding  election  in  such  county  or  district 
for  supreme  judge. 

§  8485.     Secretary  of  State  to  Be  Notified  and  Result  Certified  to  Him. 

When  any  petition  for  the  referendum  is  filed  with  any  county  clerk, 
he  shall  notify  the  secretary  of  state,  by  registered  letter,  of  that  fact, 
and  when  the  election  thereon  has  been  held,  and  the  vote  thereon  can- 
vassed, he  shall  certify  the  result  to  the  secretary  of  state  in  hke  manner. 

CALIFORNIA. 

CONSTITUTIONAL  PR0\1SI0NS. 

[Article  IV,  Section  1,  of  the  Constitution,  as  amended  October  10,  1911.] 
The  legislative  power  of  this  state  shall  be  vested  in  a  senate  and 
assembly  which  shall  be  designated  "The  Legislature  of  the  State  of 
California,"  but  the  people  reserve  to  themselves  the  power  to  propose 
laws  and  amendments  to  the  constitution,  and  to  adopt  or  reject  the  same, 
at  the  polls  independent  of  the  legislature,  and  also  reserve  the  power,  at 
their  own  option,  to  so  adopt  or  reject  any  act,  or  section  or  part  of  any 
act,  passed  by  the  legislature.  The  enacting  clause  of  every  law  shall  be 
"The  people  of  the  State  of  California  do  enact  as  follows:". 

The  first  power  reserved  to  the  people  shall  be  known  as  the  initiative. 
Upon  the  presentation  to  the  secretary  of  state  of  a  petition  certified  as 
herein  provided  to  have  been  signed  by  quahfied  electors,  equal  in  number 
to  eight  per  cent  of  all  the  votes  cast  for  all  candidates  for  governor  at 
the  last  preceding  general  election,  at  which  a  governor  was  elected,  pro- 
posing a  law  or  amendment  to  the  constitution,  set  forth  in  full  in  said 
petition,  the  secretary  of  state  shall  submit  the  said  proposed  law  or 
amendment  to  the  constitution  to  the  electors  at  the  next  succeeding 
general  election  occurring  subsequent  to  ninety  days  after  the  presenta- 
tion aforesaid  of  said  petition,  or  at  any  special  election  called  by  the  gov- 
ernor in  his  discretion  prior  to  such  general  election.  All  such  initiative 
petitions  shall  have  printed  across  the  top  thereof  in  twelve  point  black- 
face type  the  following:  "Initiative  measure  to  be  submitted  directly  to 
the  electors." 

Upon  the  presentation  to  the  secretary  of  state,  at  any  time  not  less 
than  ten  days  before  the  commencement  of  any  regular  session  of  the 
legislature,  of  a  petition  certified  as  herein  provided  to  have  been  signed 
by  qualified  electors  of  the  state  equal  in  number  to  five  per  cent  of  all 
the  votes  cast  for  all  candidates  for  governor  at  the  last  preceding  general 
election,  at  which  a  governor  was  elected,  proposing  a  law  set  forth  in  full 
in  said  petition,  the  secretary  of  state  shall  transmit  the  same  to  the 
legislature  as  soon  as  it  convenes  and  organizes.  The  law  proposed  by 
such  petition  shall  be  either  enacted  or  rejected  without  change  or  amend- 


239 

ment  by  the  legislature,  within  forty  days  from  the  time  it  is  received  by 
the  legislature.  If  any  law  proposed  by  such  petition  shall  be  enacted 
by  the  legislature  it  shall  be  subject  to  referendum,  as  hereinafter  provided. 
If  any  law  so  petitioned  for  be  rejected,  or  if  no  action  is  taken  upon  it 
by  the  legislature,  within  said  forty  days,  the  secretary  of  state  shall  sub- 
mit it  to  the  people  for  approval  or  rejection  at  the  next  ensuing  general 
election.  The  legislature  may  reject  any  measure  so  proposed  by  initia- 
tive petition  and  propose  a  different  one  on  the  same  subject  by  a  yea 
and  nay  vote  upon  separate  roll  call,  and  in  such  event  both  measures 
shall  be  submitted  by  the  secretary  of  state  to  the  electors  for  approval 
or  rejection  at  the  next  ensuing  general  election  or  at  a  prior  special  elec- 
tion called  bj''  the  governor,  in  his  discretion,  for  such  purpose.  All  said 
initiative  petitions  last  above  described  shall  have  printed  in  twelve  point 
black-face  tj^pe  the  following:  "Initiative  measure  to  be  presented  to 
the  legislature." 

The  second  power  reserved  to  the  people  shall  be  kno^Ti  as  the  refer- 
endum. No  act  passed  by  the  legislature  shall  go  into  effect  until  ninety 
days  after  the  final  adjournment  of  the  session  of  the  legislature  which 
passed  such  act,  except  acts  calling  elections,  acts  providing  for  tax  levies 
or  appropriations  for  the  usual  current  expenses  of  the  state,  and  urgency 
measures  necessary  for  the  immediate  preservation  of  the  public  peace, 
health  or  safety,  passed  by  a  two-thirds  vote  of  all  the  members  elected 
to  each  house.  Whenever  it  is  deemed  necessary  for  the  immediate 
preservation  of  the  public  peace,  health  or  safety  that  a  law  shall  go  into 
immediate  effect,  a  statement  of  the  facts  constituting  such  necessity 
shall  be  set  forth  in  one  section  of  the  act,  which  section  shall  be  passed 
only  upon  a  yea  and  nay  vote,  upon  a  separate  roll  call  thereon;  provided, 
however,  that  no  measure  creating  or  abolishing  any  office  or  changing 
the  salary,  term  or  duties  of  any  officer,  or  granting  any  franchise  or 
special  privilege,  or  creating  any  vested  right  or  interest,  shall  be  construed 
to  be  an  urgency  measure.  Any  law  so  passed  by  the  legislature  and  de- 
clared to  be  an  urgency  measure  shall  go  into  immediate  effect. 

Upon  the  presentation  to  the  secretary  of  state  within  ninety  days 
after  the  final  adjournment  of  the  legislature  of  a  petition  certified  as 
herein  provided  to  have  been  signed  by  qualified  electors  equal  in  number 
to  five  per  cent  of  all  the  votes  cast  for  all  candidates  for  governor  at  the 
last  preceding  general  election  at  which  a  governor  was  elected,  asking 
that  any  act  or  section  or  part  of  any  act  of  the  legislature  be  submitted 
to  the  electors  for  their  approval  or  rejection,  the  secretary  of  state  shall 
submit  to  the  electors  for  their  approval  or  rejection,  such  act,  or  section 
or  part  of  such  act  at  the  next  succeeding  general  election  occurring  at 
any  time  subsequent  to  thirty  daj^s  after  the  filing  of  said  petition  or  at 
any  special  election  which  may  be  called  by  the  governor,  in  his  discretion, 
prior  to  such  regular  election,  and  no  such  act  or  section  or  part  of  such 
act  shall  go  into  efi'ect  until  and  unless  approved  by  a  majority  of  the 
qualified  electors  voting  thereon;    but  if  a  referendtun  petition  is  filed 


240 

against  any  section  or  part  of  any  act  the  remainder  of  such  act  shall  not 
be  delayed  from  going  into  effect. 

Any  act,  law  or  amendment  to  the  constitution  submitted  to  the  people 
by  either  initiative  or  referendum  petition  and  approved  by  a  majority 
of  the  votes  cast  thereon,  at  any  election,  shall  take  effect  five  days  after 
the  date  of  the  official  declaration  of  the  vote  by  the  secretary  of  state. 
No  act,  law  or  amendment  to  the  constitution,  initiated  or  adopted  by 
the  people,  shall  be  subject  to  the  veto  power  of  the  governor,  and  no  act, 
law  or  amendment  to  the  constitution,  adopted  by  the  people  at  the  polls 
under  the  initiative  provisions  of  this  section,  shall  be  amended  or  repealed 
except  by  a  vote  of  the  electors,  unless  otherwise  provided  in  said  initiative 
measure;  but  acts  and  laws  adopted  by  the  people  under  the  referendum 
provisions  of  this  section  may  be  amended  by  the  legislature  at  any  subse- 
quent session  thereof.  If  any  provision  or  provisions  of  two  or  more 
measures,  approved  by  the  electors  at  the  same  election,  conflict,  the  pro- 
vision or  provisions  of  the  measure  receiving  the  highest  affirmative  vote 
shall  prevail.  Until  otherwise  provided  by  law,  all  measures  submitted  to 
a  vote  of  the  electors,  under  the  provisions  of  this  section,  shall  be  printed, 
and  together  with  arguments  for  and  against  each  such  measure  by  the 
proponents  and  opponents  thereof,  shall  be  mailed  to  each  elector  in  the 
same  manner  as  now  provided  by  law  as  to  amendments  to  the  constitu- 
tion, proposed  by  the  legislature;  and  the  persons  to  prepare  and  present 
such  arguments  shall,  until  otherwise  provided  by  law,  be  selected  by  the 
presiding  officer  of  the  senate. 

If  for  any  reason  any  initiative  or  referendum  measure,  proposed  by 
petition  as  herein  provided,  be  not  submitted  at  the  election  specified  in 
this  section,  such  failure  shall  not  prevent  its  submission  at  a  succeeding 
general  election,  and  no  law  or  amendment  to  the  constitution,  proposed 
by  the  legislature,  shall  be  submitted  at  any  election  unless  at  the  same 
election  there  shall  be  submitted  all  measures  proposed  by  petition  of  the 
electors,  if  any  be  so  proposed,  as  herein  provided. 

Any  initiative  or  referendum  petition  may  be  presented  in  sections,  but 
each  section  shall  contain  a  full  and  correct  copy  of  the  title  and  text  of 
the  proposed  measure.  Each  signer  shall  add  to  his  signature  his  place 
of  residence,  giving  the  street  and  number  if  such  exist.  His  election 
precinct  shall  also  appear  on  the  paper  after  his  name.  The  number  of 
signatures  attached  to  each  section  shall  be  at  the  pleasure  of  the  person 
soliciting  signatures  to  the  same.  Any  qualffied  elector  of  the  state  shall 
be  competent  to  sohcit  said  signatures  within  the  county  or  city  and 
county  of  which  he  is  an  elector.  Each  section  of  the  petition  shall  bear 
the  name  of  the  county  or  city  and  county  in  which  it  is  circulated,  and 
only  qualified  electors  of  such  county  or  city  and  county  shall  be  compe- 
tent to  sign  such  section.  Each  section  shall  have  attached  thereto  the 
affidavit  of  the  person  soliciting  signatures  to  the  same,  stating  his  own 
qualifications  and  that  all  the  signatures  to  the  attached  section  were 
made  in  his  presence  and  that  to  the  best  of  his  knowledge  and  belief  each 
signature  to  the  section  is  the  genuine  signature  of  the  person  whose  name 


241 

it  purports  to  be,  and  no  other  affidavit  thereto  shall  be  required.  The 
affidavit  of  any  person  soliciting  signatures  hereunder  shall  be  verified 
free  of  charge  by  any  officer  authorized  to  administer  oaths.  Such  peti- 
tions so  verified  shall  be  prima  facie  evidence  that  the  signatures  thereon 
are  genuine  and  that  the  persons  signing  the  same  are  qualified  electors. 
Unless  and  until  it  be  otherwise  proven  upon  official  investigation,  it  shall 
be  presumed  that  the  petition  presented  contains  the  signatures  of  the 
requisite  number  of  qualified  electors. 

Each  section  of  the  petition  shall  be  filed  with  the  clerk  or  registrar  of 
voters  of  the  county  or  city  and  county  in  which  it  was  circulated,  but  all 
said  sections  circulated  in  any  county  or  city  and  county  shall  be  filed  at 
the  same  time.  Within  twenty  days  after  the  filing  of  such  petition  in 
his  office  the  said  clerk,  or  registrar  of  voters,  shall  determine  from  the 
records  of  registration  what  number  of  qualified  electors  have  signed  the 
same,  and  if  necessary  the  board  of  supervisors  shall  allow  said  clerk  or 
registrar  additional  assistants  for  the  purpose  of  examining  such  petition 
and  provide  for  their  compensation.  The  said  clerk  or  registrar,  upon  the 
completion  of  such  examination,  shall  forthwith  attach  to  said  petition, 
except  the  signatures  thereto  appended,  his  certificate,  properly  dated, 
showing  the  result  of  said  examination  and  shall  forthwith  transmit  said 
petition,  together  with  his  said  certfficate,  to  the  secretary  of  state  and 
also  file  a  copy  of  said  certificate  in  his  office.  Within  forty  days  from  the 
transmission  of  the  said  petition  and  certificate  by  the  clerk  or  registrar  to 
the  secretary  of  state,  a  supplemental  petition  identical  with  the  original 
as  to  the  body  of  the  petition  but  containing  supplemental  names,  may  be 
filed  with  the  clerk  or  registrar  of  voters,  as  aforesaid.  The  clerk  or  regis- 
trar of  voters  shall  within  ten  days  after  the  filing  of  such  supplemental 
petition  make  like  examination  thereof,  as  of  the  original  petition,  and 
upon  the  completion  of  such  examination  shall  forthwith  attach  to  said 
petition  his  certificate,  properly  dated,  showing  the  result  of  said  examina- 
tion, and  shall  forthwith  transmit  a  copy  of  said  supplemental  petition, 
except  the  signatures  thereto  appended,  together  with  his  certificate,  to 
the  secretary  of  state. 

When  the  secretary  of  state  shall  have  received  from  one  or  more  county 
clerks  or  registrars  of  voters  a  petition  certified  as  herein  provided  to  have 
been  signed  by  the  requisite  number  of  qualified  electors,  he  shall  forth- 
with transmit  to  the  county  clerk  or  registrar  of  voters  of  every  county 
or  city  and  county  in  the  state  his  certificate  showing  such  fact.  A  peti- 
tion shall  be  deemed  to  be  filed  with  the  secretarj^  of  state  upon  the  date 
of  the  receipt  by  him  of  a  certificate  or  certificates  showing  said  petition 
to  be  signed  by  the  requisite  number  of  electors  of  the  state.  Any  county 
clerk  or  registrar  of  voters  shall,  upon  receipt  of  such  copy,  file  the  same 
for  record  in  his  office.  The  duties  herein  imposed  upon  the  clerk  or  regis- 
trar of  voters  shall  be  performed  by  such  registrar  of  voters  in  all  cases 
where  the  office  of  registrar  of  voters  exists. 

The  initiative  and  referendum  powers  of  the  people  are  hereby  further 
reserved  to  the  electors  of  each  county,  city  and  county,  city  and  town 


242 

of  the  state,  to  be  exercised  under  such  procedure  as  may  be  provided  by 
law.  Until  otherwise  provided  by  law,  the  legislative  body  of  any  such 
county,  city  and  county,  city  or  town  may  provide  for  the  manner  of  exer- 
cising the  initiative  and  referendum  powers  herein  reserved  to  such  coun- 
ties, cities  and  counties,  cities  and  towns,  but  shall  not  require  more  than 
fifteen  per  cent  of  the  electors  thereof  to  propose  any  initiative  measure 
nor  more  than  ten  per  cent  of  the  electors  thereof  to  order  the  referendum. 
Nothing  contained  in  this  section  shall  be  construed  as  affecting  or  limiting 
the  present  or  future  powers  of  cities  or  cities  and  counties  having  charters 
adopted  under  the  provisions  of  section  eight  of  article  eleven  of  this  con- 
stitution. In  the  submission  to  the  electors  of  any  measure  under  this 
section,  all  officers  shall  be  guided  by  the  general  laws  of  this  state,  except 
as  is  herein  otherwise  provided.  This  section  is  self -executing,  but  legis- 
lation may  be  enacted  to  facilitate  its  operation,  but  in  no  way  limiting  or 
restricting  either  the  provisions  of  this  section  or  the  powers  herein  re- 
served. 

STATUTORY  PROVISIONS. 

Attorney-General  to  prepare  Title  and  Summary  for  Initiative 

Measures. 

[Political  Code,  Section  1197a,  adopted  1915— Chapter  42,  Statutes  of  1915.] 

It  shall  be  the  duty  of  the  proponents  of  any  initiative  measure  relating 
to  the  constitution  or  the  laws  of  the  State  of  California,  prior  to  circulating 
any  petition  for  signatures  thereon,  to  submit  a  draft  of  said  petition  to 
the  attorney  general  with  a  request  that  he  prepare  a  title,  and  summary 
of  the  chief  purposes  and  points  of  said  proposed  measure.  Such  title 
and  summary  shall  forthwith  be  prepared  in  the  manner  provided  for  the 
preparation  of  ballot  titles  in  paragraph  three  of  section  one  thousand 
one  hundred  ninety-seven  of  the  Political  Code.  Said  title  and  summary 
shall  not  exceed  one  hundred  words  in  all. 

Heading  on  Each  Page  op  Petition. 

[Political  Code,  Section  11976,  adopted  1915— Chapter  42,  Statutes  of  1915.] 

The  proponents  of  any  proposed  initiative  measure  shall  place  upon 
each  section  of  the  petition  in  relation  thereto  above  the  text  of  the  meas- 
ure the  title  and  summary  referred  to  in  section  one  thousand  one  hundred 
ninety-seven  a  of  the  Political  Code  not  exceeding  one  hundred  words  in 
all.  Across  the  top  of  each  page  of  any  petition  asking  that  any  act  or 
section,  or  part  of  any  act  of  the  legislature  be  submitted  to  the  electors 
for  their  approval  or  rejection,  there  shall  be  printed  in  twelve-point  black- 
face type  the  following:  i 

'^Referendum  against  An  Act  passed  by  the  Legislature." 

Across  the  top  of  each  page  after  the  first  page  of  every  initiative, 
referendum  or  recall  petition  or  section  thereof  which  may  be  prepared 


243 

and  circulated  in  accordance  with  law  there  shall  be  printed  in  cighteen- 
point  gothic  type  a  short  title,  in  not  to  exceed  twenty  words,  showing  the 
nature  of  the  petition  and  the  subject  to  which  it  relates. 

No  officer  chargeable  by  law  with  receiving  or  fiUng  in  his  office  any 
initiative,  referendum  or  recall  petition  shall  receive  or  file  any  such  peti- 
tion which  does  not  conform  with  the  provisions  of  this  section.  This 
section  shall  apply  only  to  initiative,  referendum  and  recall  measures 
affecting  the  constitution  or  laws  of  the  state,  or  state  officers. 

Cooperation  in  Preparation  of  Initiative  Measures  by  Chief  op 
Legislative  Counsel  Bureau. 

[Chapter  41,  Statutes  of  1915.] 

...  It  shall  also  be  the  duty  of  the  chief  of  the  legislative  counsel 
bureau,  whenever  in  his  judgment  there  is  reasonable  probability  that  an 
initiative  measure  will  be  submitted  to  the  voters  of  the  State  of  Cali- 
fornia under  the  laws  of  the  state  relating  to  the  submission  of  measures 
by  initiative,  to  co-operate  with  the  proponents  of  said  measure  in  the 
preparation  of  said  law  when  requested  in  writing  so  to  do  by  twenty-five 
or  more  electors  proposing  such  a  measure. 

Who  qualified  to  sign  Petition. 

[Political  Code,  Section  1083a,  as  amended  by  Chapter  138,  Statutes  of  1915.] 

Wherever,  by  the  constitution  or  laws  of  this  state,  any  initiative,  ref- 
erendum, recall  or  nominating  petition  or  paper,  or  any  petition  or  paper, 
is  required  to  be  signed  by  qualified  electors,  only  an  elector  who  is  a 
registered  qualified  elector  at  the  time  he  signs  such  petition  or  paper 
shall  be  entitled  to  sign  the  same,  and  no  elector  shall  be  entitled  to  sign 
any  such  petition  or  paper  on  or  after  the  first  day  of  January  of  an  evfen- 
numbered  year  unless  he  shall,  on  or  since  said  first  day  of  January,  have 
made  an  affidavit  of  registration  as  required  by  law.  Such  signer  shall 
at  the  time  of  so  signing  such  petition  or  paper  affix  thereto  the  date  of 
such  signing.  Wherever,  by  the  constitution  or  laws  of  this  state,  the 
county  clerk  or  registrar  of  voters  is  required  to  determine  from  the  records 
of  registration  what  number  of  qualified  electors  have  signed  such  petition 
or  paper,  he  shall  determine  that  fact  with  respect  to  the  purported  signa- 
ture of  any  person  from  the  affidavit  of  registration,  and  records  relating 
thereto,  current  and  in  effect  at  the  date  of  such  signing  of  such  petition 
or  paper. 

Penalty  for  signing  Fictitious  Name  or  Name  of  Another. 

[Penal  Code,  Section  472a,  adopted  1915— Chapter  43,  Statutes  of  1915.] 

Every  person  who  subscribes  to  any  initiative,  referendum  or  recall 
petition  or  to  any  nominating  petition  a  fictitious  name,  or  who  sub- 
scribes thereto  the  name  of  another,  is  guilty  of  a  felony  and  is  punishable 
by  imprisonment  in  the  state  prison  for  not  less  than  one  nor  more  than 
fourteen  years. 


244 


Penalty  for  Misrepresentation  as  to  Petitions,  for  Unlawful 
Circulation   and   Filing   thereof,    for   Signing   such   Petition 

MORE   than  once,  ETC. 

[Penal  Code,  Section  646,  adopted  1915— Chapter  49,  Statutes  of  1915.] 

1.  It  shall  be  unlaw'ful  for  any  person  circulating,  as  principal  or  agent, 
or  having  charge  or  control  of  the  circulation  of,  or  obtaining  signatures 
to,  any  petition  authorized  or  provided  for  by  the  constitution  or  laws  of 
the  State  of  California  regulating  the  initiative,  referendum  or  recall  to 
misrepresent  or  make  any  false  statement  concerning  the  contents,  pur- 
port or  effect  of  any  such  petition  to  any  person  who  signs,  or  who  desires 
to  sign,  or  who  is  requested  to  sign,  or  who  makes  inquiries  with  reference 
to  any  such  petition,  or  to  whom  any  such  petition  is  presented  for  his  or 
her  signature. 

2.  It  shall  be  unlawful  for  any  person  to  wilfully  or  knowingly  circu- 
late, publish  or  exhibit  any  false  statement  or  misrepresentation  concern- 
ing the  contents,  purport  or  effect  of  any  petition  mentioned  in  this  section 
for  the  purpose  of  obtaining  any  signature  to  any  such  petition  or  for  the 
purpose  of  persuading  any  person  to  sign  any  such  petition. 

3.  It  shall  be  unla^^^ul  for  any  person  to  file  in  the  office  of  the  clerk  or 
other  officer  provided  by  law  to  receive  such  filing,  any  petition  mentioned 
in  this  section  to  which  is  attached,  appended  or  subscribed  any  signature 
which  the  person  so  filing  such  petition  knows  to  be  false  or  fraudulent  or 
not  the  genuine  signature  of  the  person  purporting  to  sign  such  petition 
or  whose  name  is  attached,  appended  or  subscribed  thereto. 

4.  It  shall  be  unlawful  for  any  person  to  circulate,  or  cause  to  be  cir- 
culated, any  petition  mentioned  in  this  section,  knowing  the  same  to  con- 
tain false,  forged  or  fictitious  names. 

5.  It  shall  be  unlawful  for  any  person  to  make  any  false  affidavit  con- 
cerning any  petition  mentioned  in  this  section  or  the  signatures  appended 
thereto. 

6.  It  shall  be  unlawful  for  any  public  official  or  employee  knowingly 
to  make  any  false  return,  certification  or  affidavit,  concerning  any  peti- 
tion mentioned  in  this  section,  or  the  signatures  appended  thereto. 

7.  It  shall  be  unlawful  for  any  person  to  knowingly  sign  his  own  name 
more  than  once  to  any  petition  mentioned  in  this  act,  or  to  sign  his  name 
to  any  such  petition  knowing  himseK  at  the  time  of  such  signing  not  to  be 
qualified  to  sign  the  same. 

8.  Any  person,  either  as  principal  or  agent,  violating  any  of  the  pro- 
visions of  this  section  is  punishable  by  imprisonment  in  the  state  prison, 
or  in  a  county  jail,  not  exceeding  two  years,  or  by  fine  not  exceeding  five 
thousand  dollars,  or  by  both. 


245 


Feinting  of  Pamphlets. 

[Political  Code,  Section  1195a,  as  amended  by  Chapter  540,  Statutes  of  1915.] 

The  secretar}'  of  state  shall  cause  to  be  printed  at  the  state  printing 
office  one  and  one-fifth  times  as  many  pamphlets  as  there  are  registered 
voters  in  the  state.  Such  pamphlets  shall  contain  a  complete  copy  of  all 
constitutional  amendments,  propositions  and  measures  submitted  to  a 
vote  of  the  electors  of  the  state  by  the  legislature,  or  by  initiative  or  refer- 
endum petition,  a  copy  of  the  corresponding  constitutional  or  statutory 
provisions  as  then  in  force,  if  any,  and  a  copy  of  the  statements  provided 
for  in  section  one  thousand  one  hundred  ninetj'-five  in  this  code  and  in 
section  one,  article  four  of  the  constitution  of  the  State  of  California. 
The  parts  of  the  proposed  amendments  differing  from  the  existing  provi- 
sions shall  therein  be  distinguished  in  print,  so  as  to  facilitate  comparison. 
All  questions,  propositions,  measures  and  constitutional  amendments 
which  are  to  be  submitted  to  a  vote  of  the  electors  shall  be  printed  in 
said  pamphlets,  so  far  as  possible,  in  the  same  order,  manner  and  form  in 
which  the  same  shall  be  designated  upon  the  ballot  and  shall  be  desig- 
nated thereon  by  the  respective  ballot  titles  or  designations  which  may 
be  provided  therefor.  Said  ballot  titles  shall  be  numbered  consecutively 
and  printed  on  the  pamphlets  herein  referred  to  immediately  prior  to  the 
particular  question,  proposition,  measure  or  constitutional  amendment 
therein  referred  to.  There  shall  also  be  printed  on  said  pamphlets  the 
copy  of  said  ballot  title  or  designation  as  the  same  will  appear  on  the 
ballots  when  voted  on  in  the  order  and  with  the  proper  number  which 
ballot  title  or  designation  shall  be  the  method  b}^  which  said  questions, 
propositions  and  constitutional  amendments  shall  be  designated  on  the 
ballots. 

Distribution  of  Pamphlets. 

[Political  Code,  Section  1195&,  adopted  in  1915 — Chapter  540,  Statutes  of  1915.] 

The  secretary  of  state  shall  duly,  and  not  less  than  thirty  days  before 
the  election  next  ensuant  at  which  such  amendments,  propositions,  meas- 
ures or  questions  are  to  be  voted  on,  certify  such  pamphlet  and  the  matters 
contained  therein  and  furnish  each  county  clerk  in  the  state  with  one 
and  one-fifth  times  as  many  copies  of  such  pamphlets  as  there  are  regis- 
tered voters  in  his  county.  The  clerk  of  eoch  county  shall  not  more  than 
twenty-five  days,  nor  less  than  fifteen  days  prior  to  said  election,  cause 
to  be  mailed  to  each  voter  a  copy  of  such  pamphlet  and  no  other  publica- 
tion of  such  amendments,  propositions,  measures,  questions  or  state- 
ments shall  be  necessary  or  authorized.  Three  copies  of  such  pamphlets, 
to  be  supplied  by  the  secretary  of  state,  shall  be  kept  at  every  polling  place, 
while  an  election  is  in  progress,  so  that  they  may  be  freely  consulted  by 
the  electors. 


246 


Pkeservation  op  Petitions. 

[Political  Code,  Section  1194,  adopted  1915 — Chapter  152,  Statutes  of  1915.] 

The  secretary  of  state  shall  preserve  for  a  period  of  four  years  in  his 
office  all  initiative,  referendum  and  recall  petitions  filed  therein  under  the 
provisions  of  law  and  shall  thereafter  destroy  the  same  unless  they  have 
been  introduced  in  evidence  in  some  action  or  proceeding  then  pending, 

ARIZONA. 

CONSTITUTIONAL  PROVISIONS. 

Article    IV. 

Legislative  Department. 

1.    Initiative  and  Referendum. 

Sec.  1.     (1)    The  legislative  authority  of  the  state  shall  be  vested  in 

a  Legislature,  consisting  of  a  Senate  and  a  House  of  Representatives,  but 

the  people  reserve  the  power  to  propose  laws  and  amendments  to  the 

Constitution  and  to  enact  or  reject  such  laws  and  amendments  at  the 

polls,  independently  of  the  Legislature;    and  they  also  reserve,  for  use 

at  their  own  option,  the  power  to  approve  or  reject  at  the  polls  any  Act, 

or  item,  section,  or  part  of  any  Act,  of  the  Legislature. 

(2)  The  first  of  these  reserved  powers  is  the  Initiative.  Under  this 
power  ten  per  centum  of  the  qualified  electors  shall  have  the  right  to 
propose  any  measure,  and  fifteen  per  centum  shall  have  the  right  to  pro- 
pose any  amendment  to  the  Constitution. 

(3)  The  second  of  these  reserved  powers  is  the  Referendum.  Under 
this  power  the  Legislature,  or  five  per  centum  of  the  qualified  electors, 
may  order  the  submission  to  the  people  at  the  polls  of  any  measure,  or 
item,  section,  or  part  of  any  measure,  enacted  by  the  Legislature,  except 
laws  immediately  necessary  for  the  preservation  of  the  pubhc  peace, 
health,  or  safety,  or  for  the  support  and  maintenance  of  the  departments 
of  the  State  Government  and  State  institutions,  .  .  . 

STATUTORY  PROVISIONS. 
Revised  Statutes,  1913. 
Titi;e    XXII. 
Chapter  I.  —  Initiative  and  Referendum. 
(Chapter  12,  Laws  1913,  Third  Special  Session.) 
3323.     The  following  shall  be  substantially  the  form  of  petition  for 
referring  to  the  people  under  the  use  of  the  referendum  by  petition  any 
measure  or  item,  section,  or  part  of  any  measure  enacted  by  the  legisla- 
ture of  the  state  of  Arizona,  or  by  the  legislative  body  of  any  incorporated 
city,  town  or  county. 


247 


Warning. 

It  IS  a  felony  for  any  one  to  sign  any  initiative  or  referendum  petition  with  any 
name  other  than  his  own,  or  knowingly  to  sign  his  name  more  than  once  for  the 
same  measure,  or  knowingly  to  sign  such  petition  when  he  is  not  a  qualified  elector. 

Petition  for  Referendum. 

To  the  Honorable ,  Secretary  of  State  for  the  state  of  Arizona 

(or  to  the  clerk  of  the  board  of  supervisors,  city  clerk,  or  corresponding  officer,  in 
the  case  of  petitions  for  or  on  local  county,  city,  or  town  measures) : 

We,  the  undersigned  citizens  and  quaHfied  electors  of  the  state  of  Arizona, 

respectfully  order  that  the  senate  (or  house)  bill  No or  other  local  county, 

city,  or  town  measure,  entitled  (title  of  act  or  ordinance,  and  if  the  petition  is  against 
less  than  the  whole  act  or  ordinance  then  set  forth  here  the  item,  section,  or  part,  of 

any  measure  on  which  the  referendum  is  used),  passed  by  the session 

of  said  legislature  of  the  atate  of  Arizona,  at  the  general  (or  special,  as  the  case  may 
be)  session  of  said  legislature  (or  by  county,  city  or  town  legislative  body)  shall  be 
referred  to  a  vote  of  the  qualified  electors  of  the  state  (county,  city  or  town)  for  their 
approval  or  rejection  at  the  next  regular  general  election  (or  city  or  town  election) 
and  each  for  himself  says:  I  have  personally  signed  this  petition;  I  have  not  signed 
any  other  petition  for  the  same  measure;  I  am  a  qualified  elector  for  the  state  of 

Arizona,  county  of  (or  city  and  county  of,  as  the  case  may  be,) 

and  my  place  of  residence  (including  street  and  number,  if  such  exist,)  is  correctly 
written  after  my  name. 

1.     Name ;      E.esidence ; 

Post  Office ;  Date 

(If  in  a  city,  street  and  number.) 

(Here  follow  twenty  numbered  lines  for  signatures.) 

3324.  The  foUowiog  shall  be  substantially  the  form  of  petition  for 
any  law  or  amendment  to  the  constitution  of  the  state  of  Arizona,  or 
county  legislative  measure  or  city  ordinance  or  amendment  to  a  city 
charter  proposed  by  the  initiative  to  be  submitted  directly  to  the  electors : 

Initiative  Measure  to  be  submitted  directly  to  the  Ei^ectors. 

(In  twelve  point  black  face  type.) 

Warning. 

It  is  a  felony  for  any  one  to  sign  an  initiative  or  referendum  petition  with  any 
name  other  than  his  own,  or  knowingly  to  sign  his  name  more  than  once  for  the 
same  measure,  or  proposed  constitutional  amendment,  or  knowingly  to  sign  such 
petition  when  he  is  not  a  quaUfied  elector. 

Initiative  Petition. 

To  the  Honorable Secretary  of  State  for  the 

state  of  Arizona  (or  to  the  clerk  of  the  board  of  supervisors,  city  clerk,  or  corre- 
sponding officer,  in  the  case  of  petitions  for  or  on  local  county,  city,  or  town  meas- 
ures) : 

We,  the  undersigned  citizens  and  qualified  electors  of  the  state  of  Arizona,  re- 
spectfully demand  that  the  following  proposed  law  (or  amendment  of  the  constitu- 
tion, or  other  initiative  measure,  as  the  case  may  be)  shall  be  submitted  to  the  quali- 
fied electors  of  the  state  of  Arizona  (county,  city,  or  town  of •  •  ) 

for  their  approval  or  rejection  at  the  next  regular  general  election  (or  county,  city. 


248 

or  town  election),  and  each  for  himself  says:  I  have  personally  signed  this  petition; 
I  have  not  signed  any  other  petition  for  the  same  measure;  I  am  a  qualified  elector 
of  the  state  of  Arizona,  county  of  (or  city,  town  or  county  of,  as  the  case  may  be) 

;  and  my  place  of  residence  (including  street  and  number, 

if  they  exist)  is  correctly  written  after  my  name. 

1.     Name ;      Residence ; 

Post  Office ;     Date 

(If  in  a  city,  street  and  number.) 

(Here  follow  twenty  numbered  lines  for  signatures.) 

3325.  Every  such  sheet  for  petitioners'  signatures  shall  be  attached 
to  a  full  and  correct  copy  of  the  title  and  text  of  the  measure,  or  proposed 
amendment  to  the  constitution,  so  proposed  by  the  initiative  petition; 
but  such  petition  may  be  filed  with  the  secretary  of  state  in  numbered 
sections  for  convenience  in  handling,  and  referendum  petitions  shall  be 
attached  to  a  full  and  correct  copy  of  the  title  and  text  of  the  measure  on 
which  the  referendum  is  used  and  may  be  filed  in  numbered  sections  in 
like  manner.  Not  more  than  twenty  signatures  on  one  sheet  shall  be 
counted.  When  any  such  initiative  or  referendum  petition  shall  be 
offered  for  filing,  the  secretary  of  state,  in  the  presence  of  the  governor 
and  the  person  offering  the  same  for  filing,  shall  detach  the  sheets  contain- 
ing the  signatures  and  affidavits  and  cause  them  all  to  be  attached  to  one 
or  more  printed  copies  of  the  measure  so  proposed  by  the  initiative,  or 
item,  section,  measure  or  part  of  any  measure  on  which  a  referendum 
petition  is  filed;  provided,  that  all  petitions  for  the  initiative  and  for  the 
referendum  and  sheets  for  signatures  shall  be  printed  on  pages  seven 
inches  in  width  by  ten  inches  in  length,  with  a  margin  of  one  and  three- 
fourths  inches  at  the  top  for  binding;  if  the  aforesaid  sheets  shall  be  too 
bulky  for  convenient  binding  in  one  volume,  they  may  be  bound  in  two 
or  more  volumes,  those  in  each  volume  to  be  attached  to  a  single  printed 
copy  of  such  measure,  or  proposed  amendment  to  the  constitution;  the 
detached  copies  of  such  measure,  or  proposed  constitutional  amendment, 
shall  be  dehvered  to  the  person  offering  the  same  for  filing.  If  any  such 
measure  or  proposed  constitutional  amendment  shall,  at  the  ensuing  elec- 
tion, be  approved  by  the  people,  then  the  copies  thereof  so  preserved,  with 
the  sheets  and  signatures  and  affidavits,  and  a  certified  copy  of  the  gov- 
ernor's proclamation  declaring  the  sam.e  to  have  been  approved  by  the 
people,  shall  be  bound  together  in  such  form  that  they  may  be  conven- 
iently identified  and  preserved.  The  secretary  of  state  shall  cause  every 
measure  or  constitutional  amendment  submitted  under  the  powers  of  the 
initiative,  so  approved  by  the  people,  to  be  printed  with  the  general  laws 
enacted  by  the  next  ensuing  session  of  the  legislature,  with  the  date  of  the 
governor's  proclamation  declaring  the  same  to  have  been  approved  by  the 
people. 

3326.  Each  and  every  sheet  of  every  petition  containing  signatures 
shall  be  verified  on  the  back  thereof,  in  substantially  the  following  form, 
by  the  person  who  circulated  said  sheet  of  said  petition,  by  his  or  her 
affidavit  thereon  as  a  part  thereof: 


249 

State  of  Arizona,  \ 

^               ,  >  ss: 

County  of J 

I.    ,    being    first    duly    sworn 

say:  (here  shall  be  legibly  -wTitten  or  typewritten  the  names  of  the  signers  of  the 
sheet)  signed  this  sheet  of  the  foregoing  petition,  in  my  presence,  and  each  of  them, 
signed  his  name  thereto  in  my  presence;  I  beheve  that  each  has  stated  his  name, 
post  ofHce  address,  and  residence  correctly,  and  that  each  signer  is  a  qualified  elec- 
tor of  the  state  of  Arizona  and  countj^  of (or  of  the  city  of 

as  the  case  may  be) . 

(Signature  and  post  office  address  of  affiant.) 

Subscribed  and  sworn  to  before  me  this day 

of 19 

(Signature  and  title  of  officer  before  whom  oath  is  made,  and  his  post-office  address.) 

The  forms  herein  given  are  not  mandatory,  and  if  substantially  followed 
in  any  petition  it  shall  be  sufficient,  disregarding  clerical  and  merely 
technical  errors. 

3327.  If  the  secretary  of  state  shall  refuse  to  accept  and  file  any  peti- 
tion for  the  initiative  if  presented  not  less  than  four  calendar  months 
preceding  the  date  of  the  election  at  which  the  measures  or  proposed  con- 
stitutional amendments  so  proposed  are  to  be  voted  upon,  or  for  the  refer- 
endum if  filed  not  more  than  ninety  days  after  the  final  adjournment  of 
the  session  of  the  legislature  which  shall  have  passed  the  measure  to 
which  the  referendum  is  applied,  any  citizen  may  apply,  within  ten  days 
after  such  refusal,  to  the  superior  court  for  a  writ  of  mandamus  to  compel 
him  to  do  so.  If  it  shall  be  decided  by  the  court  that  such  petition  is 
legallj^  sufficient,  the  secretary  of  state  shall  then  file  it,  with  a  certified 
copy  of  the  judgment  attached  thereto,  as  of  the  date  on  which  it  was 
originally  offered  for  filing  in  his  office.  On  a  showing  that  any  petition 
filed  is  not  legally  sufficient,  the  court  may  enjoin  the  secretary  of  state 
and  all  other  officers  from  certifying  or  printing  on  the  official  ballot  for 
the  ensuing  election  the  ballot  title  and  number  of  the  measure  or  pro- 
posed amendment  to  the  constitution  set  forth  in  such  petition.  All 
such  suits  shall  be  advanced  on  the  court  docket  and  heard  and  decided 
by  the  court  as  quickly  as  possible.  Either  party  may  appeal  to  the  su- 
preme court  within  ten  days  after  the  decision  is  rendered.  The  superior 
court  of  JMaricopa  county  shall  have  jurisdiction  in  all  cases  of  measures 
or  proposed  constitutional  amendments  to  be  submitted  to  the  electors  of 
the  state  at  large;  in  cases  of  local  and  special  measures,  the  superior 
court  of  the  county,  or  of  one  of  the  counties  in  which  such  measures  are 
to  be  voted  upon,  shall  have  jurisdiction;  in  case  of  municipal  legislation, 
the  superior  court  of  the  county  in  which  the  city  concerned  is  situated 
shall  have  jurisdiction. 

3328.  When  any  initiative  or  referendum  petition  or  any  measure  or 
amendment  to  the  constitution  referred  to  the  people  by  the  legislature 
shall  be  regularly  and  legally  filed,  with  the  secretary  of  state,  he  shall 
cause  to  be  printed  on  the  official  ballot  at  the  next  regular  general  elec- 
tion the  title  and  number  of  said  measure  or  proposed  constitutional 


250 

amendment,  together  with  the  words  "Yes"  and  "No"  in  such  manner 
that  the  electors  may  express  at  the  polls  their  approval  or  disapproval 
of  the  measure  or  proposed  amendment. 

3329.  The  secretary  of  state  at  the  time  he  furnishes  to  the  clerks  of 
the  boards  of  supervisors  of  the  several  counties  certified  copies  of  the 
names  of  the  candidates  for  state  and  other  offices,  shall  furnish  to  each 
of  said  clerks  his  certified  copy  of  the  titles  and  numbers  of  the  several 
measures  and  proposed  amendments  to  the  constitution  to  be  voted  upon 
at  the  ensuing  regular  general  election.  The  affirmative  of  the  first 
measure  shall  be  numbered  300,  and  the  negative  301  in  numerals,  and 
the  succeeding  measures  shall  be  numbered  consecutively  302,  303,  304, 
305,  and  so  on,  at  each  election.  Proposed  constitutional  amendments 
shall  be  similarly  numbered  beginning  with  the  number  101.  Proposed 
constitutional  amendments  shall  be  placed  by  themselves  at  the  head  of 
the  ballot  column,  followed  by  the  measures  referred.  It  shall  be  the 
duty  of  the  several  clerks  to  have  printed  said  titles  and  numbers  upon 
the  official  ballot  in  the  order  presented  to  them  by  the  secretary  of 
state  and  in  the  relative  positions  required  by  law.  Proposed  constitu- 
tional amendments  shall  be  designated  "Proposed  amendments  to  the 
constitution."  Said  amendments  shall  be  divided  into  two  subdivisions 
designated  and  arranged  respectively  as  "a"  Proposed  by  the  Legisla- 
ture, and  "b"  Proposed  by  Initiative.  Measures  referred  by  the  legisla- 
ture shall  be  designated  by  the  heading  "Referred  to  the  people  by  the 
legislature;"  measures  referred  by  petition  shall  be  designated  "Refer- 
endum ordered  by  petition  of  the  people;"  measures  proposed  by  initia- 
tive petition  shall  be  designated  and  distinguished  on  the  ballot  by  the 
heading  "Proposed  by  initiative  petition." 

Whenever  any  act  is  referred  to  a  vote  of  the  people  by  direction  of 
the  legislature,  or  by  referendum  petition,  there  shall  be  printed  on  the 
official  ballot  in  one  line  immediately  after  the  title  of  each  measure 
submitted  as  herein  provided  the  following: 

If  you  favor  the  above  law,  vote  YES;  if  opposed,  vote  NO. 

3331.  The  manner  of  voting  upon  measures  and  proposed  constitu- 
tional amendments  submitted  to  the  people  shall  be  the  same  as  is  now 
or  may  be  required  and  provided  by  law;  no  measure  or  proposed  amend- 
ment to  the  constitution  shall  be  adopted  unless  it  shall  receive  an  affirm- 
ative majority  of  the  total  number  of  respective  votes  cast  on  such 
measure  and  entitled  to  be  counted  under  the  provisions  of  this  title; 
that  is  to  say,  supposing  forty  thousand  ballots  to  be  properly  marked 
on  any  measure,  it  shall  not  be  adopted  unless  it  shall  receive  more  than 
twenty  thousand  affirmative  votes.  If  two  or  more  conflicting  laws  or 
proposed  constitutional  amendments  shall  be  approved  by  the  people  at 
the  same  election,  the  law  or  proposed  amendments  receiving  the  great- 
est number  of  affirmative  votes  shall  be  paramount  in  all  particulars  as 
to  which  there  is  a  conflict,  even  though  such  law  may  not  have  received 


251 

the  greatest  majority  of  affirmative  votes.  If  two  or  more  conflicting 
amendments  to  the  constitution  shall  be  approved  by  the  people  at  the 
same  election,  the  amendment  which  receives  the  greatest  number  of 
affirmative  votes  shall  be  paramount  in  all  particulars  as  to  which  there 
is  a  conflict,  even  though  such  amendment  may  not  have  received  the 
greatest  majority  of  affirmative  votes. 

3332.  Not  later  than  the  first  Monday  of  the  third  month  next  before 
any  regular  general  election,  nor  later  than  thirty  days  before  any  special 
election,  at  which  any  proposed  law,  part  of  an  act,  or  amendment  to 
the  constitution  is  to  be  submitted  to  the  people,  the  secretary  of  state 
shall,  unless  a  special  session  of  a  legislature  adjourn  at  such  a  time  as  to 
render  it  impossible  so  to  do,  cause  to  be  printed  in  pamphlet  form  a 
true  copy  of  the  title  and  text  of  each  proposed  constitutional  amend- 
ment and  measure  to  be  submitted,  with  the  number  and  form  in  which 
the  ballot  title  thereof  will  be  printed  on  the  official  ballot.  In  case  a 
special  session  adjourns  at  such  a  time  as  to  render  the  above  impossible, 
the  secretary  of  state  shall  proceed  with  such  dispatch  as  he  may  be 
able,  and  in  the  spirit  of  this  section.  The  person,  committee,  or  duly 
authorized  officers  of  any  organization,  filing  any  petition  under  the  in- 
itiative, but  no  other  person  or  organization,  shall  have  the  right  to  file 
with  the  secretary  of  state  for  printing  and  distribution  any  argument 
advocating  the  measure  or  proposed  constitutional  amendment  set  forth 
in  such  petition;  said  argument  shall  be  filed  not  later  than  the  first 
Monday  of  the  fourth  month  before  the  regular  election  at  which  the 
measm-e  is  to  be  voted  upon.  Any  person,  committee  or  organization 
may  file  with  the  secretary  of  state,  for  printing  and  distribution,  any 
arguments  they  may  desire,  opposing  any  measure,  or  proposed  consti- 
tutional amendment,  not  later  than  the  fourth  Monday  of  the  fourth 
month  immediately  preceding  such  election.  Arguments  advocating  or 
opposing  any  measures  referred  to  the  people  by  the  legislature,  or  by 
referendum  petition,  at  a  regular  general  election,  shall  be  governed  by 
the  same  rules  as  to  time,  but  may  be  filed  with  the  secretary  of  state  by 
any  person,  committee  or  organization;  in  the  case  of  measures  or  pro- 
posed constitutional  amendments  submitted  at  a  special  election,  all 
arguments  in  support  of  such  measure  or  proposed  amendment  must  be 
filed  at  least  sixty  days  before  such  election.  But  in  every  case  the 
person  or  persons  offering  such  arguments  for  printing  and  distribution 
shall  pay  to  the  secretary  of  state  sufficient  money  to  pay  all  the  expenses 
for  paper  and  printing  to  supply  one  copy  with  every  copy  of  the  measure 
or  proposed  constitutional  amendment  to  be  printed  by  the  state;  and  he 
shall  forthwith  notify  the  persons  offering  the  same  of  the  amount  of 
money  necessary.  The  secretary  of  state  shall  cause  one  copy  of  each  of 
said  arguments  to  be  bound  in  the  pamphlet  copy  of  the  measures  and 
proposed  constitutional  amendments  to  be  submitted  as  herein  provided 
and  all  such  measures  and  proposed  constitutional  amendments  and  argu- 


252 

ments  to  be  submitted  at  one  election  shall  be  bound  together  in  a  single 
pamphlet.  All  the  printing  shall  be  done  at  the  expense  of  the  state, 
and  the  pages  of  said  pamphlet  shall  be  numbered  consecutively  from 
one  to  the  end.  The  pages  of  said  pamphlet  shall  be  six  by  nine  inches 
in  size,  and  the  printed  matter  thereon  shall  be  set  in  eight  point  Roman 
faced  type,  single  leaded,  and  twenty-five  ems  in  width,  with  appropriate 
heads,  and  printed  on  sized  and  super  calendered  paper  twenty-five  by 
thirty-eight  inches,  weighing  fifty  pounds  to  the  ream.  The  title  page  of 
every  measure  and  proposed  constitutional  amendment  bound  in  said 
pamphlet  shall  show  its  ballot  title  and  ballot  numbers.  The  title  page 
of  each  argument  shall  show  the  measure  or  measures  or  proposed  consti- 
tutional amendments  it  favors  or  opposes  and  bj'-  what  persons  or  organi- 
zations it  is  issued.  Wlien  such  arguments  are  printed,  the  secretary  of 
state  shall  pay  therefor  from  the  money  deposited  with  him  and  refund 
the  surplus,  if  any,  to  the  parties  who  paid  it  to  him.  The  cost  of  printing, 
binding,  and  distributing  the  measures  and  proposed  constitutional 
amendments  proposed,  and  of  binding  and  distributing  the  arguments, 
shall  be  paid  by  the  state  as  a  part  of  the  state  printing,  it  being  intended 
that  only  the  cost  of  the  paper  and  printing  the  arguments  shall  be  paid 
by  the  parties  presenting  the  same,  and  they  shall  not  be  charged  any 
higher  rate  for  such  work  than  is  paid  by  the  state  for  similar  work  and 
paper.  Not  later  than  the  fifty-fifth  day  before  the  regular  general  elec- 
tion at  which  the  measures  or  proposed  constitutional  amendments  are 
to  be  voted  upon  the  secretary  of  state  shall  transmit  by  mail,  with  postage 
fully  prepaid,  to  every  voter  in  the  state  whose  address  he  may  have  one 
copy  of  such  pamphlet,  and  shall  continue  mailing  the  pamphlets  as  rap- 
idly thereafter  as  the  names  are  received  from  the  county  recorders  of  the 
different  counties  of  the  state,  until  all  registered  voters  have  been  sup- 
plied with  a  copy  of  the  publicity  pamphlet;  provided  that  if  the  secre- 
tary shall,  at  or  about  the  same  time,  be  mailing  any  other  pamphlet  to 
every  voter,  he  may,  if  practicable,  bind  the  matter  herein  provided  for 
in  the  first  part  of  said  pamphlet,  numbering  the  pages  of  the  entire  pam- 
phlet, consecutively  from  one  to  the  end,  or  he  may  exiclose  the  pamphlets 
under  one  cover.  In  the  case  of  a  special  election  he  shall  mail  said  pam- 
phlet to  every  voter  not  less  than  twenty  days  before  said  special  election. 
3333.  The  votes  on  measures  and  proposed  constitutional  amendments 
shall  be  counted,  canvassed,  and  returned  by  the  regular  boards  of  judges, 
clerks,  and  officers  as  votes  for  candidates  are  counted,  canvassed  and 
returned,  and  the  abstract  made  by  the  clerks  of  the  boards  of  supervisors 
of  the  several  counties  of  votes  on  measures  and  proposed  constitutional 
amendments  shall  be  returned  to  the  secretary  of  state  on  separate  ab- 
stract sheets,  in  the  manner  provided  by  law.  It  shall  be  the  duty  of  the 
secretary  of  state,  in  the  presence  of  the  governor  and  the  chief  justice  of 
the  supreme  court,  to  proceed  within  thirty  days  after  the  election,  and 
sooner  if  the  returns  be  all  received,  to  canvass  the  votes  given  for  each 
measure  and  proposed  constitutional  amendment;  and  the  governor  shall 


253 

forthwith  issue  his  proclamation,  giving  the  whole  number  of  votes  cast  in 
the  state  for  and  against  each  measure  and  proposed  constitutional  amend- 
ment, and  declaring  such  measures  and  proposed  constitutional  amend- 
ments as  are  approved  by  majority  of  those  voting  thereon  to  be  in  full 
force  and  effect  as  the  law  of  the  state  of  Arizona  from  the  date  of  said 
proclamation;  provided,  that  if  two  or  more  measures  or  proposed  con- 
stitutional amendments  shall  be  approved  at  said  election,  which  are 
known  to  conflict  with  each  other  or  to  contain  conflicting  provisions,  he 
shall  also  proclaim  which  is  paramount  in  accordance  with  the  provisions 
of  section  7,  paragraph  3331,  of  this  title. 

3334.  In  all  cities  and  towns  which  have  not  or  may  not  provide  by 
ordinance  and  charter  for  the  manner  of  exercising  the  initiative  and 
referendum  powers  reserved  by  the  constitution  to  the  people  thereof,  as 
to  their  municipal  legislation,  the  duties  required  of  the  secretary  of  state 
by  this  title,  as  to  state  legislation,  shall  be  performed  as  to  such  municipal 
legislation  by  the  city  auditor,  clerk,  or  recorder,  as  the  case  may  be;  the 
duties  required  of  the  governor  shall  be  performed  by  the  mayor  as  to 
such  municipal  legislation,  and  the  duties  required  by  this  title  of  the 
attorney  general  shall  be  performed  by  the  city  attorney  as  to  such  munici- 
pal legislation .  The  provisions  of  this  title  shall  apply  in  every  city  and 
town  in  all  matters  concerning  the  operation  of  the  initiative  and  refer- 
endum in  its  municipal  legislation,  on  which  said  city  or  town  has  not 
made  or  does  not  make  conflicting  provisions.  The  printing  and  binding 
of  measures  and  arguments  in  municipal  legislation  shall  be  paid  for  by  the 
city  in  like  manner  as  payment  is  provided  for  by  the  state  as  to  state 
legislation  by  Section  8,  Paragraph  3332,  of  this  title,  and  said  printing 
shall  be  done  in  the  same  manner  that  other  municipal  printing  is  done; 
distribution  of  said  pamphlets  shall  be  made  to  ever}'-  voter  in  the  city, 
so  far  as  possible,  by  the  city  clerk,  auditor  or  recorder,  as  the  case  may  be, 
either  by  mail  or  carrier,  not  less  than  eight  days  before  the  election  at 
which  the  measures  are  to  be  voted  upon.  Arguments  supporting  munic- 
ipal measures  shall  be  filed  with  the  city  clerk,  auditor  or  recorder,  not  less 
than  thirty  days  before  the  election  at  which  they  are  to  be  voted  upon; 
opposing  arguments  shall  be  filed  not  less  than  twenty  days  before  said 
election.  It  is  intended  to  make  the  procedure  in  municipal  legislation  as 
nearly  as  practicable  the  same  as  the  initiative  and  referendum  procedure 
for  measures  relating  to  the  people  of  the  state  at  large. 

3335.  Referendum  petitions  against  any  ordinance,  franchise  or  reso- 
lution, passed  by  a  city  council  shall  be  signed  by  not  less  than  ten  per 
cent  of  the  voters  of  said  city;  and  said  signatures  shall  be  verified  in  the 
manner  herein  provided;  the  petition  shall  be  filed  with  the  city  clerk, 
auditor,  or  recorder,  as  the  case  may  be,  within  thirty  days  after  the  pas- 
sage of  such  ordinance,  resolutions,  or  franchise.  No  city  ordinance, 
resolution  or  franchise  shall  take  effect  and  become  operative  until  thirty 
days  after  its  passage  by  the  council  and  approval  by  the  mayor,  unless 
the  same  shall  be  passed  over  his  veto,  and  in  that  case  it  shall  not  take 


254 

effect  and  become  operative  until  thirty  days  after  such  final  passage, 
except  measures  necessary  for  the  immediate  preservation  of  the  peace, 
health,  or  safety  of  the  city,  and  no  such  emergency  measure  shall  become 
immediately  operative  unless  it  shall  state  in  a  separate  section  the  reasons 
why  it  is  necessary  that  it  should  become  immediately  operative,  and  shall 
be  approved  by  the  affirmative  vote  of  three-fourtlis  of  all  the  members 
elected  to  the  city  council,  taken  by  ayes  and  noes,  and  also  approved  by 
the  mayor. 

3336.  If  any  ordinance,  charter  or  amendment  to  the  charter  of  any 
city  shall  be  proposed  by  initiative  petition,  said  petition  shall  be  filed 
•Rath  the  city  clerk,  auditor  or  recorder,  as  the  case  may  be,  and  the  city 
clerk,  auditor,  or  recorder,  as  the  case  may  be,  shall  submit  the  same  to  the 
voters  of  the  citj^  or  town  at  the  next  ensuing  election  held  therein  not  less 
than  ninety  days  after  the  same  was  first  presented  to  the  city  council. 
The  council  may  ordain  said  ordinance  or  amendment  and  refer  it  to  the 
people,  or  it  may  ordain  such  ordinance  or  amendment  v/ithout  referring 
it  to  the  people,  and  in  that  case  it  shall  be  subject  to  referendum  petition 
in  like  manner  as  other  ordinances;  the  mayor  shall  not  have  power  to  veto 
either  of  such  measures.  If  confficting  ordinances  or  charter  amendments 
shall  be  submitted  to  the  people  at  the  same  election,  and  two  or  more  of 
such  conflicting  measures  shaU  be  approved  by  the  people,  then  the  meas- 
ure which  shall  have  received  the  greatest  number  of  affirmative  votes 
shall  be  paramount  in  all  particulars  as  to  wliich  there  is  conffict,  even 
though  such  measures  may  not  have  received  the  greatest  majority. 
Amendments  to  any  city  charter  may  be  proposed  and  submitted  to  the 
people  by  the  city  council  with  or  without  an  initiation  petition,  but  the 
same  shall  be  filed  with  the  city  clerk  for  submission  not  less  than  sixty 
days  before  the  election  at  which  they  are  to  be  voted  upon,  and  no  amend- 
ment of  a  city  charter  shall  be  effective  until  it  is  approved  by  a  majority 
of  the  votes  cast  thereon  by  the  people  of  the  city  or  town  to  which  it 
applies.  The  city  council  may  bj'^  ordinance  order  special  elections  to  vote 
on  municipal  measures. 

3337.  Referendum  petitions  against  any  ordinance,  franchise  or  reso- 
lution passed  by  the  board  of  supervisors  of  any  county,  and  any  ordi- 
nance, franchise  or  resolution  may  be  proposed  by  initiative  petition  in 
any  county,  and  in  such  case  all  the  provisions  of  the  three  preceding 
sections  shaU  be  applicable.  The  petition  in  every  such  case  shall  be  filed 
with  the  board  of  supervisors,  and  all  duties  required  of  the  city  clerk  or 
recorder  shall  be  performed  by  the  clerk  of  the  said  board  of  supervisors, 
and  all  duties  required  of  the  mayor  of  a  city  or  town  shall  be  performed 
by  the  chairman  of  the  board  of  supervisors,  and  aU  duties  required  by  the 
city  attorney  shall  be  performed  by  the  county  attorney. 

3338.  Every  person  who  is  a  qualified  elector  of  the  state  of  Arizona 
may  sign  a  petition  for  the  referendum  or  for  the  initiative  for  any  measure 
which  he  is  legally  entitled  to  vote  upon.  Any  person  signing  any  name 
other  than  his  own  to  any  petition,  or  knowingly  signing  his  name  more 


255 

than  once  for  the  same  measure,  or  proposed  constitutional  amendment  at 
one  election,  or  who  is  not  at  the  time  of  signing  the  same  a  qualified  elector 
of  this  state,  or  any  officer  or  person  wilfully  \aolating  any  provision  of 
this  statute,  shall  upon  conviction  thereof,  be  punished  by  a  fine  not  ex- 
ceeding five  hundred  dollars,  or  by  imprisonment  in  the  penitentiary  not 
exceeding  two  years,  or  by  both  fine  and  imprisonment,  in  the  discretion 
of  the  court  before  which  such  conviction  shall  be  had. 

3339.  It  shall  be  unlawful  for  any  person  or  persons  to  file  any  initiative 
or  referendum  petition,  who  at  the  tinae  of  filing  said  petition,  knows  it  to 
be  falsely  made,  or  to  wilfully  destroy  or  suppress  any  initiative  or  referen- 
dum petition,  or  any  part  thereof,  which  has  been  duly  filed  with  the 
lawfully  elected  officers  of  the  state,  or  any  poUtical  subdivision  thereof. 
Any  officer  or  other  person  or  persons  violating  any  of  the  provisions  of 
this  section,  or  who  shall  aid  and  abet  in  the  violation  of  this  section,  shall 
be  punished  by  a  fine  not  to  exceed  one  thousand  dollars,  or  by  imprison- 
ment in  the  state  prison  not  less  than  one  nor  more  than  two  years,  or  by 
both  such  fine  and  imprisonment,  in  the  discretion  of  the  court. 


Penal  Code. 


711.  It  shall  be  unlawful  for  any  person  to  induce  or  compel,  or  at- 
tempt to  induce  or  compel,  by  menace  or  threat,  either  directly  or  in- 
directly, any  other  person  to  sign  or  subscribe,  or  to  refrain  from  signing 
or  subscribing,  his  name,  to  any  Initiative,  Referendum  or  Recall  Petition, 
or  petition  to  any  officer  or  oflftcial  body,  or,  after  signing  or  subscribing 
his  name,  to  have  his  name  taken  therefrom.  Any  direct  or  indirect  menace 
or  tlareat  that  any  person  mil  or  may  be  injured  in  his  business  or  dis- 
charged from  any  lawful  employment  in  wluch  he  is  engaged,  or  vnll  not 
or  shall  not  be  employed  in  any  lawful  vocation  or  labor,  shall  be  deemed 
a  violation  of  this  Act.    (>Sec.  711.) 

712.  Any  person  who  shall  violate  any  of  the  provisions  of  this  Act 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  conviction  thereof, 
shall  be  punished  by  a  fine  of  not  more  than  one  thousand  dollars,  or  by 
imprisonment  in  the  county  jail  for  not  more  than  six  months,  or  by  both 
such  fine  and  imprisonment. 


256 


MAINE. 

CONSTITUTIONAL  PROVISIONS. 

Chapter  121,  Resolves  of  1907. 

Resolves  pkoposing  an  Amendment  to  Article  Four  of  the  Constitu- 
tion OF  THE  State  of  Maine,  establishing  a  People's  Veto 

THROUGH    THE    OPTIONAL    REFERENDUM,    AND    A    DiRECT    INITIATIVE 

BY  Petition  and  at  General  or  Special  Elections. 

Resolved,  That  the  following  amendment  to  the  constitution  of  this  state 
be  proposed  for  the  action  of  the  legal  voters  of  this  state  in  the  manner 
provided  by  the  constitution,  to  wit : 

Part  first  of  article  four  is  hereby  amended  as  follows,  namely: 

By  striking  out  all  of  section  one  after  the  word  "Maine"  in  the  third 
line  thereof,  and  inserting  in  lieu  thereof  the  following  words  'But  the 
people  reserve  to  themse'ves  power  to  propose  laws  and  to  enact  or  reject 
the  same  at  the  polls  independent  of  the  legislature,  and  also  reserve  power 
at  their  own  option  to  approve  or  reject  at  the  polls  any  act,  bill,  resolve  or 
resolution  passed  by  the  joint  action  of  both  branches  of  the  legislature, 
and  the  style  of  their  laws  and  acts  shall  be  'Be  it  enacted  by  the  people  of 
the  state  of  Maine,'  so  that  said  section  as  amended  shaU  read  as  follows, 
namely: 

'  The  legislative  power  shaU  be  vested  in  two  distinct  branches,  a  house  of 
representatives  and  a  senate,  each  to  have  a  negative  on  the  other,  and 
both  to  be  styled  the  legislature  of  Maine,  but  the  people  reserve  to  them- 
selves power  to  propose  laws  and  to  enact  or  reject  the  same  at  the  polls 
independent  of  the  legislature,  and  also  reserve  power  at  their  own  option 
to  approve  or  reject  at  the  polls  any  act,  bill,  resolve  or  resolution  passed 
by  the  joint  action  of  both  branches  of  the  legislature,  and  the  style  of  their 
laws  and  acts  shall  be,  'Be  it  enacted  by  the  people  of  the  state  of  Maine.' 

Part  third  of  article  four  is  hereby  amended  as  follows,  namely: 

By  inserting  in  section  one,  after  the  words  "biennially  and"  in  the 
second  line  thereof,  the  words  'with  the  exceptions  hereinafter  stated,'  so 
that  said  section  shall  read  as  amended : 

'The  legislature  shall  convene  on  the  first  Wednesday  of  January,  bi- 
ennially, and,  with  the  exceptions  hereinafter  stated  shall  have  full  power 
to  make  and  establish  all  reasonable  laws  and  regulations  for  the  defense 
and  benefit  of  the  people  of  this  state,  not  repugnant  to  this  constitution 
nor  to  that  of  the  United  States.' 

Part  third  of  article  four  is  further  amended  by  adding  to  said  article 
the  follo^ving  sections  to  be  numbered  from  sLxteen  to  twenty-two  inclu- 
sive, namely: 

'Sect.  16.  No  act  or  joint  resolution  of  the  legislature,  except  such 
orders  or  resolutions  as  pertain  solely  to  facilitating  the  performance  of  the 
business  of  the  legislature,  of  either  branch,  or  of  any  committee  or  officer 
thereof,  or  appropriate  money  therefor  or  for  the  payment  of  salaries  fixed 


257 

by  law,  shall  take  effect  until  ninety  days  after  the  recess  of  the  legislature 
passing  it,  unless  in  case  of  emergency  (which  with  the  facts  constituting 
the  emergency  shall  be  expressed  in  the  preamble  of  the  act,)  the  legislature 
shall,  by  a  vote  of  two-thirds  of  all  the  members  elected  to  each  house, 
otherwise  direct.  An  emergency  bill  shall  include  only  such  measures  as  are 
immediately  necessary  for  the  preservation  of  the  public  peace,  health  or 
safety;  and  shall  not  include  (1)  an  infringement  of  the  right  of  home  rule 
for  municipalities,  (2)  a  franchise  or  a  license  to  a  corporation  or  an  in- 
dividual to  extend  longer  than  one  year,  or  (3)  provision  for  the  sale  or 
purchase  or  renting  for  more  than  five  years  of  real  estate.' 

'Sect.  17.  Upon  wTitten  petition  of  not  less  than  ten  thousand  elec- 
tors, addressed  to  the  governor  and  filed  in  the  office  of  the  secretary  of 
state  within  ninety  days  after  the  recess  of  the  legislature,  requesting  that 
one  or  more  acts,  bills,  resolves  or  resolutions,  or  part  or  parts  thereof, 
passed  by  the  legislature,  but  not  then  in  effect  by  reason  of  the  provisions 
of  the  preceding  section,  be  referred  to  the  people,  such  acts,  bills,  resolves, 
or  resolutions  or  part  or  parts  thereof  as  are  specified  in  such  petition  shall 
not  take  effect  until  thirty  days  after  the  governor  shall  have- announced  by 
public  proclamation  that  the  same  have  been  ratified  by  a  majority  of  the 
electors  voting  thereon  at  a  general  or  special  election.  As  soon  as  it 
appears  that  the  effect  of  any  act,  bill,  resolve,  or  resolution  or  part  or  parts 
thereof  has  been  suspended  by  petition  in  manner  aforesaid,  the  governor 
by  pubhc  proclamation  shall  give  notice  thereof  and  of  the  time  when  such 
measure  is  to  be  voted  on  by  the  people,  which  shall  be  at  the  next  general 
election  not  less  than  sixtj^  days  after  such  proclamation,  or  in  case  of  no 
general  election  within  six  months  thereafter  the  governor  may,  and  if  so 
requested  in  said  written  petition  therefor,  shall  order  such  measure  sub- 
mitted to  the  people  at  a  special  election  not  less  than  four  nor  more  than 
six  months  after  his  proclamation  thereof.' 

'Sect.  18.  The  electors  may  propose  to  the  legislature  for  its  considera- 
tion any  bill,  resolve  or  resolution,  including  bills  to  amend  or  repeal  emer- 
gency legislation  but  not  an  amendment  of  the  state  constitution,  by 
written  petition  addressed  to  the  legislature  or  to  either  branch  thereof 
and  filed  in  the  office  of  the  secretary  of  state  or  presented  to  either  branch 
of  the  legislature  at  least  thirty  daj^s  before  the  close  of  its  session.  Any 
measure  thus  proposed  by  not  less  than  twelve  thousand  electors,  unless 
enacted  without  change  by  the  legislature  at  the  session  at  which  it  is 
presented,  shall  be  submitted  to  the  electors  together  with  any  amended 
form,  substitute,  or  recommendation  of  the  legislature,  and  in  such  manner 
that  the  people  can  choose  between  the  competing  measures  or  reject  both. 
When  there  are  competing  bills  and  neither  receives  a  majoritj^  of  the  votes 
given  for  or  against  both,  the  one  receiving  the  most  votes  shall  at  the  next 
general  election  to  be  held  not  less  than  sixty  days  after  the  first  vote 
thereon  be  submitted  by  itself  if  it  receives  more  than  one-third  of  the 
votes  given  for  and  against  both.  If  the  measure  initiated  is  enacted  by  the 
legislature  without  change,  it  shall  not  go  to  a  referendum  vote  unless  in 


258 

pursuance  of  a  demand  made  in  accordance  with  the  preceding  section. 
The  legislature  may  order  a  special  election  on  any  measure  that  is  subject 
to  a  vote  of  the  people.  The  governor  may,  and  if  so  requested  in  the 
written  petitions  addressed  to  the  legislature,  shall,  by  proclamation, 
order  any  measure  proposed  to  the  legislature  by  at  least  twelve  thousand 
electors  as  herein  provided,  and  not  enacted  by  the  legislature  without 
change,  referred  to  the  people  at  a  special  election  to  be  held  not  less  than 
four  or  more  than  six  months  after  such  proclamation,  otherwise  said 
measure  shall  be  voted  upon  at  the  next  general  election  held  not  less  than 
sixty  days  after  the  recess  of  the  legislature,  to  which  such  measure  was 
proposed.' 

'Sect.  19.  Any  measure  referred  to  the  people  and  approved  by  a 
majority  of  the  votes  given  thereon  shall,  unless  a  later  date  is  specified  in 
said  measure,  take  effect  and  become  a  law  in  thirty  days  after  the  governor 
has  made  public  proclamation  of  the  result  of  the  vote  on  said  measure, 
which  he  shall  do  within  ten  days  after  the  vote  thereon  has  been  can- 
vassed and  determined.  The  veto  power  of  the  governor  shall  not  extend 
to  any  measure  approved  by  vote  of  the  people,  and  any  measure  initiated 
by  the  people  and  passed  by  the  legislature  without  change,  if  vetoed  by 
the  governor  and  if  his  veto  is  sustained  by  the  legislature  shall  be  referred 
to  the  people  to  be  voted  on  at  the  next  general  election.  The  legislature 
may  enact  measures  expressly  conditioned  upon  the  peoples'  ratification 
by  a  referendum  vote.' 

'Sect.  20.  As  used  in  either  of  the  three  preceding  sections  the  words 
"electors"  and  "people"  mean  the  electors  of  the  state  qualified  to  vote  for 
governor;  "recess  of  the  legislature"  means  the  adjournment  without  day 
of  a  session  of  the  legislature;  "general  election"  means  the  November 
election  for  choice  of  presidential  electors  or  the  September  election  for 
choice  of  governor  and  other  state  and  county  officers;  "measure"  means 
an  act,  bill,  resolve  or  resolution  proposed  by  the  people,  or  two  or  more 
such,  or  part  or  parts  of  such,  as  the  case  may  be;  "written  petition" 
means  one  or  more  petitions  written  or  printed,  or  partly  written  and  partly 
printed,  with  the  original  signatures  of  the  petitioners  attached,  verified 
as  to  the  authenticity  of  the  signatures  by  the  oath  of  one  of  the  petitioners 
certified  thereon,  and  accompanied  by  the  certificate  of  the  clerk  of  the 
city,  town  or  plantation  in  which  the  petitioners  reside  that  their  names 
appear  on  the  voting  list  of  his  city,  town  or  plantation  as  qualified  to  vote 
for  governor.  The  petitions  shall  set  forth  the  full  text  of  the  measure 
requested  or  proposed.  The  full  text  of  a  measure  submitted  to  a  vote  of 
the  people  under  the  provisions  of  the  constitution  need  not  be  printed  on 
the  official  ballots,  but,  until  otherwise  provided  by  the  legislature,  the 
secretary  of  state  shall  prepare  the  ballots  in  such  form  as  to  present  the 
question  or  questions  concisely  and  intelligibly.' 

'  Sect.  21.  The  city  council  of  any  city  may  establish  the  initiative  and 
referendum  for  the  electors  of  such  city  in  regard  to  its  municipal  affairs, 
provided  that  the  ordinance  establishing  and  providing  the  method  of 


259 

exercising  such  initiative  and  referendum  shall  not  take  effect  until  ratified 
by  vote  of  a  majority  of  the  electors  of  said  city,  voting  thereon  at  a  munic- 
ipal election.  Provided,  however,  that  the  legislature  may  at  any  time 
provide  a  uniform  method  for  the  exercise  of  the  initiative  and  referendum 
in  municipal  affairs.' 

'Sect.  22.  Until  the  legislature  shall  enact  further  regulations  not  in- 
consistent with  the  constitution  for  applying  the  people's  veto  and  direct 
initiative,  the  election  officers  and  other  officials  shall  be  governed  by  the 
provisions  of  this  constitution  and  of  the  general  law,  supplemented  by 
such  reasonable  action  as  may  be  necessary  to  render  the  preceding  sections 
self-executing.' 

Resolved,  That  all  the  foregoing  is  proposed  to  be  voted  upon  as  one 
amendment,  and  not  as  two  or  more  several  amendments. 

[The  thirty-first  amendment  was  proposed  to  the  people  by  a  resolve  of  the 
seventy-third  legislature,  approved  March  20,  1907,  and  having  been  adopted 
September  14,  1908,  was  proclaimed  by  Governor  Cobb  to  be  a  part  of  the  con- 
stitution, October  30,  1908,  and  took  effect  on  the  first  Wednesday  of  January, 
1909.] 

MARYLAND. 

CONSTITUTIONAL  PROVISION. 

Article    XVI. 

The  Referendum. 

Section  1.  (a)  The  people  reserve  to  themselves  power  known  as 
The  Referendum,  by  petition  to  have  submitted  to  the  registered  voters  of 
the  State,  to  approve  or  reject  at  the  polls,  any  Act,  or  part  of  any  Act  of 
the  General  Assembly,  if  approved  by  the  Governor,  or,  if  passed  by  the 
General  Assembly  over  the  veto  of  the  Governor. 

(6)  The  pro\isions  of  this  Article  shall  be  self-executing;  provided  that 
additional  legislation  in  furtherance  thereof  and  not  in  conflict  therewith 
may  be  enacted. 

Sec.  2.  No  law  enacted  by  the  General  Assembly  shall  take  effect 
until  the  first  day  of  June  next  after  the  session  at  which  it  may  be  passed, 
unless  it  contain  a  section  declaring  such  law  an  emergency  law  and  neces- 
sary for  the  immediate  preservation  of  the  pubUc  health  or  safety,  and 
passed  upon  a  yea  and  nay  vote  supported  by  three-fifths  of  all  the  mem- 
bers elected  to  each  of  the  two  Houses  of  the  General  Assembly;  pro- 
vided, however,  that  said  period  of  suspension  may  be  extended  as  pro- 
vided in  Section  3  (b)  hereof.  If  before  said  first  day  of  June  there  shall 
have  been  filed  with  the  Secretary  of  the  State  a  petition  to  refer  to  a  vote 
of  the  people  any  law  or  part  of  a  law  capable  of  referendum,  as  in  this 
Article  provided,  the  same  shall  be  referred  by  the  Secretary  of  State  to 
such  vote,  and  shall  not  become  a  law  or  take  effect  until  thirty  days  after 
its  approval  by  a  majority  of  the  electors  voting  thereon  at  the  next  ensu- 


260 

ing  election  held  throughout  the  State  for  Members  of  the  House  of  Rep- 
resentatives of  the  United  States.  An  emergency  law  shall  remain  in  force 
not\\dthstanding  such  petition,  but  shall  stand  repealed  thirty  days  after 
having  been  rejected  by  a  majority  of  the  qualified  electors  voting  thereon; 
provided,  however,  that  no  measure  creating  or  abolishing  any  office,  or 
changing  the  salary,  term  or  duty  of  any  officer,  or  granting  any  franchise 
or  special  privilege,  or  creating  any  vested  right  or  interest,  shall  be  en- 
acted as  an  emergency  law.  No  law  making  any  appropriation  for  main- 
taining the  State  Government,  or  for  maintaining  or  aiding  any  pubUc 
institution,  not  exceeding  the  next  previous  appropriation  for  the  same 
purpose,  shall  be  subject  to  rejection  or  repeal  under  this  section.  The 
increase  in  any  such  appropriation  for  maintaining  or  aiding  any  public 
institution  shall  only  take  effect  as  in  the  case  of  other  laws,  and  such 
increase  or  any  part  thereof  specified  in  the  petition,  may  be  referred  to  a 
vote  of  the  people  upon  petition. 

Sec.  3.  (a)  The  referendum  petition  against  an  Act  or  part  of  an 
Act  passed  by  the  General  Assembly,  shall  be  sufficient  if  signed  by  ten 
thousand  qualified  voters  of  the  State  of  Maryland,  of  whom  not  more  than 
half  shall  be  residents  of  Baltimore  city,  or  of  any  one  county;  provided 
that  any  PubHc  Local  Law  for  any  one  county  or  the  city  of  Baltimore 
shall  be  referred  by  the  Secretary  of  State  only  to  the  people  of  said  county 
or  city  of  Baltimore,  upon  a  referendum  petition  of  ten  per  cent  of  the 
qualified  voters  of  said  county  or  city  of  Baltimore  as  the  case  may  be, 
calculated  upon  the  whole  number  of  votes  cast  therein  respectively  for 
Governor  at  the  last  preceding  Gubernatorial  election, 

(6)  If  more  than  one-half,  but  less  than  the  full  number  of  signatures 
required  to  complete  any  referendum  petition  against  any  law  passed  by 
the  General  Assembly,  be  filed  with  Secretary  of  State  before  the  first  day 
of  June,  the  time  for  the  law  to  take  effect,  and  for  filing  the  remainder 
of  signatures  to  complete  the  petition  shall  be  extended  to  the  thirtieth 
day  of  the  same  month,  with  like  effect. 

Sec.  4.  A  petition  may  consist  of  several  papers,  but  each  paper  shall 
contain  the  full  text  of  the  Act  or  part  of  Act  petitioned  upon;  and  there 
shall  be  attached  to  each  such  paper  an  affidavit  of  the  person  procuring 
the  signatures  thereon  that  of  the  said  person's  own  personal  knowledge 
every  signature  thereon  is  genuine  and  bona  fide,  and  that  the  signers  are 
registered  voters  of  the  State  of  Maryland,  and  of  the  city  of  Baltimore, 
or  county,  as  the  case  may  be,  as  set  opposite  their  names,  and  no  other 
verification  shall  be  required. 

Sec.  5.  (a)  The  General  Assembly  shall  provide  for  furnishing  the 
voters  of  the  State  the  text  of  all  measures  to  be  voted  upon  by  the  people; 
provided,  that  until  otherwise  provided  by  law  the  same  shall  be  published 
in  the  manner  prescribed  by  Article  XIV  of  the  Constitution  for  the  pub- 
lication of  proposed  Constitutional  Amendments. 

(b)  All  laws  referred  under  the  provisions  of  this  Article  shall  be  sub- 
mitted separately  on  the  ballots  to  the  voters  of  the  people,  but  if  contain- 


261 

ing  more  than  two  hundred  words,  the  full  text  shall  not  be  printed  on  the 
official  ballots,  but  the  Secretary  of  State  shall  prepare  and  submit  a  ballot 
title  of  each  such  measure  in  such  form  as  to  present  the  purpose  of  said 
measure  concisely  and  intelligently.  The  ballot  title  may  be  distinct 
from  the  legislative  title,  but  in  any  case  the  legislative  title  shall  be  suffi- 
cient. Upon  each  of  the  ballots,  following  the  ballot  title  or  text,  as  the 
case  may  be,  of  each  such  measure,  there  shall  be  printed  the  words  "For 
the  referred  law"  and  "Against  the  referred  law,"  as  the  case  may  be. 
The  votes  cast  for  and  against  any  such  referred  law  shall  be  returned  to 
the  Governor  in  the  manner  prescribed  with  respect  to  proposed  amend- 
ments to  the  Constitution  under  Article  XIV  of  this  Constitution,  and  the 
Governor  shall  proclaim  the  result  of  the  election,  and,  if  it  shall  appear 
that  the  majority  of  the  votes  cast  on  any  such  measure  were  cast  in  favor 
thereof,  the  Governor  shall,  by  his  proclamation,  declare  the  same  having 
received  a  majority  of  the  votes  to  have  been  adopted  by  the  people  of 
Maryland  as  a  part  of  the  laws  of  the  State,  to  take  effect  thirty  days  after 
such  election,  and  in  Uke  manner  and  with  like  effect  the  Governor  shall 
proclaim  the  result  of  the  local  election  as  to  any  Public  Local  Law  which 
shall  have  been  submitted  to  the  voters  of  any  county  or  the  city  of  Balti- 
more. 

Sec.  6.  No  law  or  Constitutional  Amendment,  licensing,  regulating, 
prohibiting,  or  submitting  to  local  option,  the  manufacture  or  sale  of  malt 
or  spirituous  liquors,  shall  be  referred  or  repealed  under  any  Act  of  the 
provisions  of  this  Article. 

Note.  —  The  foregoing  amendment  was  submitted  by  chapter  G73  of  the  Laws 
of  1914,  and  was  ratified  November  2,  1915. 


262 


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266 


3 

Article  XXVIII. 
Article  XXIX. 

Rejected. 

Article  XXX. 
Article  XXXI. 
Article  XXXII. 
Article  XXXIII. 
Article  XXXIV. 
Article  XXXV. 
Article  XXXVI. 
Rejected. 

o 
o 

'37 

m 
a 

■< 

z 

O 

Majority 

Vote 
on  Refer- 
endum to 
Total  Vote 
on  Same. 

60.0 
83.4 

68.5 
78.7 
73.0 
83.8 
67.5 
60,9 
76.7 
68.21 

CO 
00 

Vote 
on  Refer- 
endum 
to  Vote 
for 
Governor. 

31.9 
24.9 

82.21 

49.7 
44.5 
61.7 
56.7 
52.4 
56.4 
44.5 
83.51 

157,802 
209,668 

263,111 

285,526 
285,526 
321,650 
321,650 
399,698 
365,112 
335,354 
328,121 

CO 

o 
»o 

00 
CO 

Q 

z 
m 

n 
w 

b 

> 

i 

3 
^ 

50,429 
52,271 

216,304 

141,863 
127,130 
198,485 
182,278 
209,366 
205,930 
149,240 
273,966 

00 
CO 

CO" 

"So 

a 
< 

20,184 
8,673 

131,062 

44,686 
27,021 
53,554 
29,590 
68,045 
80,555 
34,741 
186,976 

CO 
CO 

CO 

1 

30,245 
43,598 

85,242 

97,177 
100,109 
144,931 
152,688 
141,321 
125,375 
114,499 

86,990 

U5 

o 

Object  of  Referendum. 

To  Prevent  Disfranchisement  of  Pauper  Sol- 
diers and  Sailors,      ..... 

To  Provide  for  Voting  by  Precincts  in  Towns, 

To  Forbid  the  Manufacture  of  Intoxicating 
Drinks,  ....... 

To  Forbid  DisquaHfication  of  Voters,  for 
Change  of  Residence,  within  Six  Months  of 
Such  Change,            ..... 

To  Relieve  Soldiers  and  Sailors  Receiving  Pub- 
Uc  Aid  from  Designation  of  "Paupers," 

To  Abohsh  Payment  of  Poll  Tax  as  a  Prerequi- 
site to  Voting,           ..... 

To  Make  a  Majority  of  Each  Branch  of  the 
General  Court  a  Quorum, 

To  Abolish  the  Property  Qualification  for 
Office  of  Governor,  ..... 

To  Annul  the  Provision  for  Paying  Mileage 
but  Once  to  Members  of  the  General  Court, 

To  Abolish  the  Office  of  Commissioners  of 
Insolvency,      ...... 

Expediency  of  Granting  Municipal  Suffrage 
to  Women,       ...... 

To  Make  Elections  of  Governor,  Lieut.-Gov- 

"o 
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1881,  Nov.    8 

1885,  Nov.    3 

1889,  Apr.  22 

1890,  Nov.    4 

1890,  Nov.    4 

1891,  Nov.    3 

1891,  Nov.    3 

1892,  Nov.    8 

1893,  Nov.    7 

1894,  Nov.    6 

1895,  Nov.    5 

1896,  Nov.    3 

267 


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Appendix     D. 


TABLES  OF  VOTINGS  IN  OREGON  AND  IN  PORTLAND  CITY 
ELECTIONS,  1904-16. 

Oregon's  experience  with  the  Initiative  and  Referendum  has  been  both 
more  extended  and  more  varied  than  that  of  any  other  State. 

The  following  tables  of  Oregon  Votings,  taken  from  the  article  "The 
Oregon  System  at  Work,"  in  The  National  Municipal  Review  for  April, 
1914,  by  Richard  W.  Montague,  have  been  brought  down  to  date  by  the 
same  careful  student,  Mr.  George  A.  Thacher,  who  compiled  the  original 
tables. 

It  is  beUeved  that  these  tables  are  exceptionally  reliable,  and  that  they 
present  some  of  the  most  valuable  material  available  for  the  study  of  the 
actual  working  of  the  Initiative  and  Referendum.  Mr.  Montague's  paper 
is  of  great  interest. 


269 


O 


ti- 


^ 


» 
b 

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2 
o 
» 

m 

Q 

H 
BS 
K 

■pa^dopB 

93B;uaoj8jj 

50.0 
16.6 
33.3 

20.0 
66.6 

■p8:joafay[ 

1     1  c^i  >o  Ti4    1  00  ,-( 

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n 

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100.0 
50.0 

33.3 
75.0 

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« 
< 

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1-H    1-H   CO   CO            IN    rH 

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OOO'-H'-Hl-Hl-HrH 

270 


State  of  Oregon. 
1902. 


Measures  voted  on. 

Total 
Vote  on 
Measure. 

Per  Cent 

of 
Average 
Vote  for 
Officers. 

Majority. 

For. 

Against. 

Initiative  and  referendum  amendment 
to  constitution,       .... 

67,692 

78.5 

56,356 

- 

Average  vote  cast  for  six  state  officers  and  congressmen,  86,175;  highest  (sec- 
retary of  state),  88,704;  lowest  (attorney-general),  82,838;  total  electors  voting, 
92,920. 

1904. 


Local  option  liquor  law, 
Direct  primary  election  law. 
Amendment  permitting  regvdation  of 
office  of  state  printer. 


83,514 
72,559 

59,365 


92.2 
80.1 


65.5 


3,118 
39,851 

31,303 


Average  vote  cast  for  presidential  electors,  congressmen,  dairy  and  food  com- 
missioner and  justice  of  supreme  court,  90,559;  highest  (congressmen),  93,906; 
lowest  (dairy  and  food  commissioner),  84,569;  total  number  of  electprs  voting, 
99,315. 

1906. 


Referendum  on  appropriation  for  state 

colleges,  asylums,  etc.,    . 

70,676 

78.2 

17,160 

- 

Equal  suffrage  amendment. 

83,977 

92.9 

- 

10,173 

Amendment  of  local  option  law  to  give 

anti-prohibitionists  equal  privileges, 

80,441 

89.0 

- 

9,847 

To  provide  for  state  ownership  of  toll 

road  across  Cascades, 

76,052 

84.1 

- 

13,002 

Applying  referendum  to  all  laws  for 

constitutional  amendments  or  consti- 

tutional conventions. 

66,412 

73.4 

28,910 

- 

To   grant   cities  and  towns  exclusive 

power  to  enact  and  amend  their  char- 

ters,     ...... 

72,419 

80.1 

32,715 

- 

To  permit  state  printers'  pay  to  be  reg- 

ulated by  law,         .... 

73,320 

81.1 

54,178 

- 

To  provide  for  initiative  and  referen- 

dum on  local  and  special  laws  and 

parts  of  laws,          .... 

64,413 

71.2 

30,943 

- 

To  prohibit  the  use  of  free  passes  by 

pubUc  officers,         .... 

74,060 

81.9 

40,502 

— 

To  levy  gross  earnings  taxes  on  sleeping 

car,   refrigerator   car  and   oil    com- 

panies,           ..... 

76,076 

84.1 

63,194 

- 

To  levy  gross  earnings  taxes  on  express. 

telegraph  and  telephone  companies. 

77,232 

85.4 

64,512 

— 

Average  vote  for  eight  state  officers,  congressmen  and  United  States  senators, 
90,377;  highest  (governor),  96,715;  lowest  (labor  commissioner),  80,132;  total 
number  of  electors  voting,  99,445. 


271 


1908. 


Total 

Per  Cent 
of 

Majoritt. 

Measures  voted  on. 

Votp  nn 

Average 
Vote  for 

Measure. 

Officers. 

For. 

Against. 

To  increase  pay  of  legislators,     . 

88,583 

83.8 

49.201 

To  permit  state  institutions  to  be  lo- 

cated elsewhere  than  at  capital  on 

vote  of  the  people, 

82,843 

78.3 

1,107 

_ 

To  increase  number  of  justices  of  su- 

preme court,  etc.,  .... 

80,834 

76.5 

_ 

20,348 

To  change  time  of  elections  from  June 

to  November,         .... 

84,318 

79.7 

47,138 

_ 

To  give  custody  of  county  prisoners  to 

sheriff,  fixing  the  price  of  meals  of 

prisoners,       ..... 

90,476 

85.6 

30,410 

_ 

To  require  railroads  to  transport  state 

and  county  officers  free. 

88,262 

83.5 

_ 

30,550 

To  appropriate  $100,000  to  build  ar- 

mories for  national  guard. 

88,355 

83.6 

_ 

21, .341 

To  increase  annual  appropriation  for 

state  university,     .... 

84,650 

80.1 

3,580 

_ 

To  grant  woman  suffrage. 

95,528 

90.4 

_ 

21,812 

To  regulate  fishing  for  salmon  and  stur- 

geon in  certain  sections  of  Columbia 

river,  etc.,      ..... 

87,302 

82.6 

5,862 

_ 

Giving  cities  exclusive  control  of  thea- 

tres, race  tracks,  etc.,  and  of  the  sale 

of  liquor  subject  to  the  local  option 

law,      ...... 

91,788 

86.8 

- 

12,904 

To   exempt   all   improvements,    tools, 

livestock  and  furniture  from  taxa- 

tion,     ...... 

92,937 

87.9 

- 

28,805 

Amendment  providing  for  recall  of  elec- 

tive officers,  ..... 

89,383 

84.6 

27,379 

- 

To  instract  legislature  to  elect  candi- 

dates for  United  States  senators  re- 

ceiving largest  popular  vote,    . 

90,830 

85.9 

48,506 

- 

Amendment  authorizing  proportional 

representation,    preferential    baUot, 

etc.,      ...... 

82,996 

78.5 

14,740 

- 

To  hmit  campaign  expenses  and  pre- 

vent corrupt  practices  in  elections,    . 

85,343 

80.7 

22,741 

- 

To  prevent  fishing  for  salmon  and  stur- 

geon in  upper  Columbia,  except  with 

hook  and  line,         .... 

86,410 

81. 7' 

25.850 

- 

Restoring  grand  jury  and  prohibiting 

indictments  to  be  found  otherwise,    . 

80,701 

76.3 

23,727 

- 

To  create  Hood  River  County  out  of 

portion  of  Wasco  County, 

70,726 

66.9 

17,170 

Average  vote  for  four  state  officers  and  United  States  senator,  105,670;  highest 
(United  States  senator),  112,364;  lowest  (railroad  commissioner),  98.617;  total 
number  of  electors  voting,  116,614. 


272 


1910. 


Measures  voted  on. 


Total 
Vote  on 
Measure. 


To  grant  suffrage  to  women  taxpayers, 

To  authorize  construction  of  an  insane 
asylum  in  eastern  Oregon, 

To  authorize  a  convention  to  revise  the 
constitution,  .  .  .  . 

To  create  separate  districts  for  each 
state  senator  and  representative, 

To  drop  requirement  that  all  taxation 
shall  be  equal  and  uniform, 

To  authorize  state  construction  of  rail- 
roads, ...... 

To  provide  that  property  may  be  spe- 
cifically taxed,        .  .  .  . 

To  increase  the  pay  of  a  circuit  judge 
in  eastern  Oregon, 

Creating  Nesmith  County, 

To  provide  permanent  support  for 
Monmouth  normal  school, 

Creating  Otis  County, 

To  annex  part  of  Clackamas  County  to 
Multnomah  County, 

Creating  Williams  County, 

To  permit  each  county  to  adopt  single 
tax  and  to  abolish  poll  tax, 

To  give  cities  and  towns  exclusive 
powers  to  control  sale  of  liquors  sub- 
ject to  local  option  law. 

Employers'  liability  law  for  protection 
of  laborers  in  hazardous  occupation. 

Creating  Orchard  County, 

Creating  Clark  County, 

To  provide  permanent  support  for  nor- 
mal school  at  Weston,     . 

To  annex  a  portion  of  Washington 
County  to  Multnomah  County, 

To  provide  permanent  support  for  nor- 
mal school  at  Ashland,    . 

To  prohibit  the  manufacture  and  sale 
of  liquor  in  Oregon, 

To  prevent  manufacture,  sale,  posses- 
sion, exchange  and  giving  away  of 
liquor,  ..... 

To  create  commission  to  prepare  bill  to 
fix  indemnity  for  injuries  to  em- 
ployees, ..... 

To  prohibit  fishing  in  Rogue  River 
except  with  hook  and  hne, 

Creating  DesChutes  County, 

To  provide  for  creation  of  new  towns 
and  counties  by  vote  in  such  districts, 

To  permit  counties  to  go  in  debt  for 
permanent  roads,  .... 

Authorizing  presidential  primaries, 


94,335 
91,638 
83,117 

78,252 

77,791 

78,914 

73,321 

84,664 
83,457 

90,235 
79,442 

85,252 
78,598 

.  86,298 

104,100 

90,201 
78,376 
77,317 

87,099 

82,268 

87,128 

104,761 

106,215 

83,943 

83,109 

78,078 

79,456 

84,181 
84,977 


Per  Cent 

of 
Average 
Vote  for 
Officers. 


90.7 

88.1 

79.9 

75.3 

74.8 

75.9 

70.5 

81.4 
80.3 

86.8 
76.4 

82.0 
75.6 

83.0 

100.1 

86.8 
75.4 
74.4 

83.8 

79.1 

83.8 

100.8 

102.2 

80.7 

79.9 
75.1 

76.4 

81.0 
81.7 


Majority. 


For. 


8,630 


10,147 


2,044 

2,542 
22,315 


16,315 


18,369 
1,729 


Against. 


23,795 

36,831 

30,252 

2,553 

13,226 

10,063 

58,342 
37,725 

44,590 

52,752 
49,582 


47,048 
46,091 

5,303 

54,174 

10,182 

17,681 

20,913 

19,495 

42,894 
5,198 


273 


1910  — Concluded. 


Measures  voted  on. 

Total 
Vote  on 
Measure. 

Per  Cent 

of 
Average 
Vote  for 
Officers. 

Majority. 

For. 

Against. 

To  provide  inspectors  of  government 
and  for  an  official  gazette, 

To  provide  for  proportional  representa- 
tion in  legislature  and  otherwise 
modifying  its  organization, 

Judiciary  amendment  to  constitution 
authorizing  verdict  of  three-fourths 
of  jury  in  civil  cases  and  for  affirma- 
tion of  judgment  on  appeal,  notwith- 
standing error  committed  in  lower 
court,   ...... 

82,493 
81,397 

83,937 

79.3 
78.3 

80.7 

5,139 

22,583 
7,335 

Average  vote  for  fourteen  state  officers  and  congressmen,  103,906;  highest 
(governor),  117,690;  lowest  (water  superintendent),  84,308;  total  number  of 
electors  voting,  120,248. 

1912. 


To  grant  woman  suffrage. 

To  create  office  of  Heutenant  governor. 

To  permit  specific  taxation  upon  differ- 
ent classes  of  property,  . 

To  require  uniformity  of  taxation  in 
each  class  of  property  specifically 
taxed,  ...... 

To  repeal  measure  (adopted  in  1910) 
permitting  counties  to  regulate  their 
own  taxation,  .... 

To  require  majority  of  all  electors  vot- 
ing for  adoption  of  constitutional 
amendment,  .  .  .  . 

Imposing  double  liabihty  on  bank 
stockholders,  .  .  .  . 

To  give  railroad  commission  jurisdic- 
tion over  all  public  service  corpora- 
tions,   ...... 

Creating  Cascade  County, 

To  create  a  single  board  of  regents  for 
state  university  and  agricultural  col- 
lege and  fixing  tax  levy  for  such  in- 
stitutions,     ..... 

To  require  majority  of  all  electors  vot- 
ing for  adoption  of  initiative  meas- 
ures,    ...... 

To  permit  counties  to  issue  bonds  to 
build  permanent  roads.  (Grange 
biU) 

To  create  a  state  highway  department 
with  engineer  at  $3,600  a  year. 
(Grange  bill),  .... 

Anticipating  date  bill  regulating  state 
printer  becomes  effective. 


118,369 
112,206 

92.1 

87.3 

4,161 

108,523 

84.5 

- 

106,528 

82.9 

- 

111,031 

86.4 

16,731 

103,259 

80.4 

- 

104,719 

81.5 

61,243 

106,941 
97,702 

83.2 
76.0 

25,029 

105,980 

82.5 

- 

104,582 

81.4 

- 

106,412 

82.8 

- 

107,718 

83.8 

- 

104,335 

81.2 

- 

11,082 
4,819 

2,438 


37,391 

44,776 

8,578 

33,140 

7,014 

59,974 
34,749 


274 


1912  —  Continued. 


Total 

Per  Cent 
of 

Majority. 

Vote  on 
Measure. 

Average 
Vote  for 
OfEcers. 

XVXiLiAbUxtCib    VUTiliiJ    Ors, 

For. 

Against. 

To  create  office  of  hotel  inspector, 

108,905 

84.8 

75,085 

To  make  an  eight-hour  day  on  all  pub- 

lic works,       ..... 

112,586 

87.6 

16,430 

_ 

To  super\dse  selling  stocks  and  bonds 

and  to  require  a  license  therefor. 

106,058 

82.6 

- 

8,528 

To  prohibit  employment  of  state  con- 

victs by  private  agencies  and  to  au- 

thorize their  employment  on  public 

works,            ..... 

111,292 

86.6 

36,308 

_ 

To  prohibit  employment  of  city  con- 

victs by  private  agencies  and  author- 

izing  their   employment   on   public 

works,            ..... 

109,098 

84.9 

33,636 

_ 

To  create  a  state  board  to  issue  bonds 

not  exceeding  a  million  a  year  to 

build   public   roads.      ("Harmony" 

biU) 

106,487 

82.9 

- 

44,693 

To  prohibit  state  from  incurring  in- 

debtedness for  road  building  in  ex- 

cess of  2  per  cent  of  taxable  property. 

("Harmony"  bill). 

102,899 

80.1 

16,005 

_ 

To  authorize  counties  to  issue  twenty- 

year  bonds  for  road  buUding,  etc. 

("Harmony"  bill), 

103,821 

80.8 

_ 

16,599 

To  prohibit  counties  from  voting  road 

bonds  in  excess  of  2  per  cent  of  as- 

sessed     valuation.        (' '  Harmony ' ' 

bm), 

101,116 

78.7 

13,400 

_ 

To  provide  for  consolidating  contiguous 

cities  and  towns,    .... 

97,191 

75.6 

_ 

16,793 

To  provide  for  the  taxation  of  incomes 

from  whatever  source  derived, 

105,650 

82.2 

_ 

246 

To  exempt  from  taxation  all  household 

goods  actually  in  use. 

112,183 

87.3 

8,531 

_ 

To  exempt  from  taxation  all  debts  of 

every  kind  except  bank  stock  and 

banking  capital,     .... 

109,031 

84.9 

- 

24,049 

To  revise  inheritance  tax  laws,  etc.. 

102,448 

79.7 

_ 

25,230 

To  fix  percentage  of  freight  rates  on  less 

than   carload  lots  and  to  establish 

minimum    weights    and    maximum 

freights,         ..... 

103,840 

80.8 

12,772 

_ 

To    authorize    county    courts    to    sell 

bonds  for  roads  when  authorized  by 

voters.     ("  Medford  "  road  bill) , 

102,049 

79.4 

- 

24,913 

To  abolish  state  senate;    governor  to 

introduce  appropriation  bills;    pro- 

portional        representation,         etc. 

(U'Ren  constitution), 

102,203 

79.6 

- 

40,163 

To  provide  graduated  taxes  on  fran- 

chises and  natural  resources  and  ex- 

empting improvements  on  land  and 

personalty.    (State-wide  single  tax). 

113,549 

88.4 

- 

50,481 

275 


1912  —  Concluded. 


Total 
Vote  on 
Measure. 

Per  Cent 

of 
Average 
Vote  for 
Officers. 

Majority. 

For. 

Against. 

To  abolish  capital  punishment,  . 

To  prohibit  picketing  or  boj^cotting  and 
inducing  employees  to  quit  work,     . 

To  prohibit  use  of  streets  and  public 
places  for  pubUc  discussion  without 
written  permit  from  mayor,     . 

To  appropriate  §328,258  for  state  uni- 
versity buildings,    .... 

To  appropriate  §175,000  for  Ubrary  and 
museum  for  university,  . 

106,529 
110,386 

111,519 
108,422 
106,686 

82.9 
85.9 

86.8 
84.4 
83.0 

- 

22,627 
10,734 

13,545 
49,548 
52,066 

Average  vote  for  four  state  officers,  presidential  electors  and  congressmen  and 
United  States  senator,  128,391;  highest  (presidential  electors),  137,040;  lowest 
(railroad  commissioner),  118,348.    Total  number  of  electors  voting,  144,113. 


Referendum  Election. 
1913. 


Repair  fund  for  university  of  Oregon,  . 

97,259 

16,059 

Appropriation  for  university  buildings. 

96,583 

10,555 

- 

SteriHzation  law,        .... 

95,086 

- 

- 

11,552 

County  attorney  act. 

92,338 

- 

16,020 

Workmen's  compensation  act,     . 

96,422 

"       i 

39,206 

~ 

Total  number  of  votes  cast,  102,276. 


1914. 


To  amend  constitution  requiring  voters 
to  be  citizens  of  the  United  States,  . 

To  create  office  of  Lieutenant-Gov- 
ernor,  ...... 

To  consolidate  city  and  county  govern- 
ment in  certain  counties, 

To  bond  state  for  roads,  irrigation  and 
power  projects,       .... 

To  omit  requirement  in  constitution 
that  all  taxation  shall  be  equal  and 
uniform,         ..... 

To  provide  for  specific  taxes,  income 
taxes  and  exemptions,     . 

To  support  normal  school  at  Ashland, 

To  permit  passage  of  laws  for  consoli- 
dation of  towns  and  cities. 

To  support  normal  school  at  Weston,  . 

To  pay  legislators  §5  per  day,     . 

Universal  constitutional  eight-hour  day 
amendment,  .... 


204,726 
195,844 
180,586 
185,309 

175,696 

175,066 
193,684 

173,787 
192,795 
187,365 

217,248 


95.7 

125,032 

91.6 

- 

84.4 

- 

86.6 

- 

82.1 

- 

81.8 
90.6 

- 

81.3 
90.1 
87.6 

18,445 

101.6 

- 

91,764 
25,802 
85,791 

57,284 

70,342 
25,602 


17.895 
105,191 


-   118,528 


276 


1914  —  Concluded. 


Total 
Vote  on 

Per  Cent 

of 
Average 

MAJOBrrT. 

Measures  voted  on. 

Measure. 

Vote  for 
Officers. 

For. 

Against. 

To   make  eight-hour  day   for   female 

workers,         ..... 

208,776 

97.6 

- 

31,816 

To  prohibit  party  nominations  for  ju- 

dicial officers,          .... 

181,586 

84.9 

- 

32,940 

To  provide  a  $1,500  ta.x  exemption. 

201,688 

94.3 

- 

70,698 

Public  docks  and  water  front  amend- 

ment,   ...... 

181,692 

84.9 

- 

47,436 

Municipal  wharves  and  dock  bUl, 

178,223 

83.3 

- 

44,003 

Prohibition  amendment,     . 

237,204 

110.9 

36,480 

- 

Abolishing  death  penalty,  . 

200,947 

94.0 

157 

- 

To  provide  for  specific  personal  gradu- 

ated taxes,     ..... 

184,129 

86.1 

- 

65,757 

To  consohdate  corporation  and  insur- 

ance departments. 

175,623 

82.1 

- 

64,685 

Dentistry  bill,  ..... 

203,126 

95.0 

- 

17,682 

County  officers  term  amendment, 

189,880 

88.8 

- 

24,198 

Tax  code  commission  bill, 

177,904 

83.2 

- 

109,032 

To  abolish  Desert  Land  Board  and  to 

reorganize  certain  state  officers. 

176,067 

82.3 

- 

110.665 

Proportional     representation     amend- 

ment,   ...... 

176,856 

82.7 

- 

97,376 

State  senate  constitutional  amendment. 

185,805 

86.9 

- 

61,053 

To  create  department  of  industry  and 

pubHc  works,          .... 

184,060 

86.1 

— 

68,342 

Primary  delegate  election  bill,     . 

178,696 

83.1 

- 

128,580 

Equal    assessment    and   taxation    and 

$300  exemption  amendment,  . 

183,787 

85.9 

~ 

97,227 

Average  vote  for  twelve  state  officers,  congressmen  and  United  States  senator, 
213,757;  highest  (governor),  248,052;  lowest  (superintendent  of  water  divisions), 
172,404.    Total  number  of  electors  voting,  259,868. 


1916. 


Single  item  veto  amendment. 

194,980 

83.0 

88,566 

_ 

Ship  tax  exemption,  .... 

185,062 

78.8 

54,242 

- 

To  repeal  provision  against  negro  suf- 

frage,   ...... 

200.728 

85.5 

- 

674 

Full  rental  value  land  tax  and  home- 

makers  loan  fund  amendment, 

198,370 

84.5 

- 

111,590 

To  provide  a  normal  school  at  Pendle- 

ton and  ratify  location  of  certain  in- 

stitution,       ..... 

206,352 

87.9 

- 

12,694 

Anti-compulsory  vaccination  bill, 

199,864 

85.1 

- 

374 

To  repeal  Sunday  closing  law,     . 

218,912 

93.2 

32,760 

- 

To  permit  manufacture  and  sale  of  4 

per  cent  malt  liquors, 

226,572 

96.5 

- 

54,626 

Forbidding  importation  of  intoxicating 

liquors  for  beverage  purposes, 

224,603 

95.7 

5,261 

277 


1916  —  Concluded. 


Total 
Vote  on 
Measure. 

Per  Cent 

of 
Average 
Vote  for 
Officers. 

Majority. 

For. 

Against. 

To  create  rural  credit  loan  fund, 
To  limit  increase  of  taxes  to  6  per  cent 
increase  on  previous  levy, 

191,375 
183,567 

81.5 

78.2 

23,601 
15,505 

- 

Average  vote  for  five  state  officers,  presidential  electors  and  congressmen, 
234,686;  highest  (presidential  electors),  260,547;  lowest  (supreme  court  justices), 
202,664.    Total  number  of  electors  voting,  269,057. 


City  of  Portland. 
1905. 


To  annex  territory,    .... 

9,962 

73.1 

638 

To  annex  territory,    .... 

10,007 

73.4 

3,103 

_ 

To  tax  whole  city  for  bridges. 

11,141 

81.7 

2,991 

_ 

To  grant  street  railway  franchise. 

10,124 

74.3 

- 

1,886 

To  provide  security  for  city  funds. 

9,192 

67.5 

2,462 

_ 

To  provide  a  clerk  for  police  court. 

9,240 

67.8 

526 

_ 

To  place  penalty  on  delinquent  assess- 

ments,           ..... 

9,039 

66.4 

- 

939 

To  decrease  cost  of  advertising, 

9,446 

69.3 

6,034 

- 

To  grant  telephone  franchise, 

13,773 

101.0 

12,653 

- 

Average  vote  cast  for  ten  city  officers,  13,624;    highest  (mayor),  14,689;    av- 
erage for  five  councilmen,  lowest,  13,156. 


1907. 


To  issue  water  bonds. 
To  issue  park  and  boulevard  bonds,     . 
To  issue  dock  bonds. 
To  issue  bridge  bonds. 
To  issue  bonds  for  fire  boat  and  water 
mains,  .  ,  .  .  . 

To  improve  streets  by  districts. 
To  permit  remonstrance  of  four-fifths 
of  property  owners  to  defeat  street 
improvements,        .  .  .  . 

To  regulate  sale  of  property  for  assess- 
ments, .... 
To  increase  salary  of  city  engineer, 
To  increase  salary  of  city  attorney. 
To  increase  salary  of  city  treasurer, 
To  increase  salary  of  police  judge. 
To  increase  salaries  of  councilmen. 


14,363 
14,286 
13,961 
14,440 

13,943 
13,121 


12,736 

12,445 
13,745 
13,750 
13,654 
13,678 
13,905 


4,841 
5,950 
4,980 
2,804 
6,395 


278 


1907  —  Concluded. 


Measuhes  voted  on. 

Total 
Vote  on 
Measure. 

Per  Cent 

of 
Average 
Vote  for 
Officers. 

Majority. 

For. 

Against. 

To  create  ofSce  of  sergeant  of  police,  . 
To  create  free  employment  bureau, 
To  annex  territory,    .... 
To  create  board  of  engineer  examiners. 
To  regulate  electrical  wiring, 
To  grant  franchise  to  gas  company,     . 
To  increase  liquor  license  fees,    . 
To  fix  wholesale  liquor  license  fees. 

12,864 
13,449 
11,950 
13,172 
13,179 
13,915 
14,203 
13,599 

81.9 
85.6 
76.1 
83.8 
83.9 
88.6 
90.4 
86.6 

2,556 
6,583 
3,996 

3,385 
1,735 

4,389 

1,790 
2,059 

Average  vote  cast  for  eight  city  officers,  15,701;  highest  (mayor),  16,919;  lowest 
(councilmen) ,  14,866. 

1909. 


To  adopt  commission  form  of  govern- 

ment,   ...... 

15,673 

93.8 

- 

5,867 

To  levy  cost  of  water  mains  on  prop- 

erty benefited,        .... 

14,824 

88.8 

- 

6,806 

To  pay  cost  of  water  mains  out  of  water 

fund,    ...... 

14,122 

84.5 

472 

_ 

To  amend  provisions  for  official  adver- 

tising, ...... 

14,581 

87.3 

- 

3,785 

To  regulate  electric  wiring. 

14,989 

89.7 

- 

1,943 

To  require  franchise  holders  to  keep 

books  of  account,  .... 

14,746 

88.3 

5,858 

_ 

To   amend   section   creating  women's 

auxiliary  of  police. 

15,065 

90.2 

1,031 

_ 

To  purchase  warrants  from  any  idle 

fund,    ...... 

14,470 

86.6 

- 

2,904 

To  permit  bank  of  $50,000  capital  to 

apply  for  deposits. 

14,273 

85.5 

87 

_ 

To  deposit  funds  upon  open  accounts, 

13,952 

83.5 

- 

3,050 

To    take    chief   deputy    engineer   and 

others  from  civil  service. 

14,151 

84.7 

- 

2,777 

Regulating  discharge  of  employees  in 

civil  service,            .... 

14,617 

87.5 

2,331 

_ 

To   authorize   deputy   clerk  in   poUce 

court,   ...... 

14,610 

87.5 

- 

3,806 

To  authorize  auditor  to  act  as  clerk  of 

viewers,          ..... 

14,241 

85.3 

3,999 

_ 

To  withhold  delivery  of  warrants  till 

proof  of  prior  liens  is  filed. 

14,048 

84.1 

3,320 

_ 

To  require  assurances  of  rededication 

on  vacating  streets. 

13,538 

81.1 

1,942 

_ 

To    appropriate    earth    above    street 

grades,            ..... 

14,202 

85.0 

896 

_ 

To   provide   bonding   assessments   for 

street  and  sewer  work,    . 

13,805 

82.6 

1,777 

_ 

To  increase  rate  of  interest  on  delin- 

quent assessments. 

14,122 

84.5 

- 

6,140 

To  provide  that  acceptance  of  improve- 

ments by  city  is  conclusive  as  to 

character,      ..... 

13,505 

80.9 

- 

667 

279 


1909  —  Concluded. 


Total 

Per  Cent 
of 

Majority. 

Average 
Vote  for 

Measure. 

Officers. 

For. 

Against. 

To    abolish    water,    park    and    health 

boards,           ..... 

14,322 

85.7 

_ 

1,590 

To  issue  bonds  for  water  mains. 

13,813 

82.7 

1,403 

_ 

To  permit  council  to  fix  salary  of  city 

engineer,        ..... 

14,461 

86.6 

_ 

3,039 

To  permit  council  to  fix  salary  of  city 

treasurer,       ..... 

14,282 

85.5 

_ 

7,342 

To  permit  council  to  fix  salary  of  city 

attorney,        ..... 

14,491 

86.8 

_ 

7,371 

To  issue  crematory  bonds. 

15,481 

92.7 

7,999 

_ 

To  issue  Broadway  bridge  bonds, 

16,139 

96.6 

4,017 

_ 

To  regulate  electric  poles,  wires,  etc.,    . 

14,597 

87.4 

1,673 

_ 

To  transfer  Hawthorne  bridge  to  Mar- 

ket street,      ..... 

15,953 

95.5 

- 

11,495 

To  issue  Sherman  street  bridge  bonds, 

15,499 

92.8 

_ 

9,017 

To  prohibit  use  of  patented  articles,    . 

14,885 

89.1 

_ 

9,415 

To  grant  a  corporation  exclusive  priv- 

ilege of  selling  liquor  for  ten  years,    . 

16,111 

96.5 

_ 

13,913 

To  create  an  excise  board  to  control  sale 

of  hquor,        ..... 

15,559 

93.2 

- 

9,233 

To  issue  light  and  power  bonds. 

15,723 

94.1 

_ 

3,645 

To  license  vehicles,    .... 

15,443 

92.5 

- 

815 

Average  vote  cast  for  seven  citj^  officers,  16,693;  highest  (mayor),  17,751;  lowest 
(councilmen) ,  15,802. 

Special  Election. 
1910. 


To  issue  dock  bonds. 
To  issue  bonds  for  water  system. 
To  increase  salary  of  city  engineer. 
To  increase  salary  of  city  attorney, 


27,076 

_ 

10,466 

26,261 

- 

3,645 

- 

25,605 

- 

- 

609 

25,439 

— 

- 

1,531 

1911. 


To  issue  Meade  street  bridge  bonds,    . 

25,471 

96.8 

2,411 

To  levy  tax  for  street  cleaning  fund,    . 

22,807 

86.7 

2,765 

- 

To  pension  firemen,  .... 

25,277 

96.1 

- 

3,643 

To  increase  city  attorney's  salary, 

24,080 

91.5 

- 

2,926 

To  pension  policemen. 

25,057 

95.2 

- 

9,977 

To  issue  bonds  for  municipal  building, 

24,669 

93.8 

12,575 

- 

To  issue  park  bonds. 

24,674 

93.8 

- 

10,522 

To  fill  gulches  out  of  special  bridge 

fund,    ...... 

23,245 

88.3 

3,373 

- 

To  issue  public  auditorium  bonds, 

24,686 

93.8 

3,144 

- 

To  issue  bonds  for  garbage  collecting 

system,           ..... 

24,119 

91.7 

5.497 

- 

To  increase  salary  of  city  engineer, 

23,807 

90.5 

~ 

99 

280 


1911  —  Concluded. 


Per  Cent 

Total 

of 

Majokity. 

Measures  voted  on. 

Vote  on 

Average 

Measure. 

Vote  for 
Officers. 

For. 

Against. 

To  pension  men  in  street  cleaning  de- 

partment,     ..... 

24,550 

93.3 

- 

14,542 

To  require  two  or  more  sets  of  plans  for 

sewer  work,  ..... 

23,116 

87.9 

6,956 

- 

No  seat  no  fare  ordinance. 

25,736 

97.8 

- 

8,308 

To  levy  license  tax  on  gross  receipts  of 

gas  companies,        .  =        . 

24,206 

92.0 

3,104 

_ 

To  levy  license  tax  on  gross  receipts  of 

electric  companies, 

23,923 

90.9 

2,817 

- 

To  create  a  public  service  commission. 

22,897 

87.0 

- 

485 

To  issue  bonds  for  municipal  paving 

plant,   ...... 

24,160 

91.8 

- 

7,264 

To  prevent  rights  and  interests  of  city 

from  being  divested. 

22,947 

87.2 

6,551 

- 

To  regulate  fences  and  bill  boards. 

24,631 

93.6 

5,623 

_ 

To  authorize  council  to  determine  low- 

est bidder  and  select  street  improve- 

ment,   ...... 

22,597 

85.9 

1,139 

.  - 

To  prevent  carrying  of  banners, 

24,872 

94.5 

- 

8,380 

To  prevent  boycotting. 

24,952 

94.9 

— 

756 

Average  vote  cast  for  ten  city  officers,  26,293 ;  highest  (mayor) ,  28,006 ;  lowest 
(councilmen),  25,423. 


Special  Electiov . 
1912. 


To  adopt  commission  form  of  govern- 

ment,   ...... 

25,353 

— 

- 

917 

To  issue  bonds  to  buy  Ross  Island, 

25,449 

- 

- 

15,043 

To  issue  bonds  for  a  South  Portland 

bridge,            ..... 

25,444 

- 

- 

9,362 

To  issue  incinerator  bonds. 

25,262 

- 

_ 

1,496 

To  issue  park  and  boulevard  bonds,     . 

25,271 

- 

- 

6,047 

To  issue  bonds  for  site  of  public  audi- 

torium,          ..... 

24,752 

- 

- 

6,060 

To  vacate  streets  for  public  purposes,  . 

24,520 

- 

8,102 

- 

To  lengthen  time  for  bonding  street  and 

sewer  assessments. 

24,708 

- 

16,498 

- 

To  increase  city  attorney's  salary, 

24,959 

- 

- 

7,599 

To  increase  city  treasurer's  salary, 

24,875 

- 

- 

8,471 

To  increase  city  engineer's  salary, 

25,056 

- 

— 

6,000 

To  create  office'of  city  prosecutor. 

24,561 

- 

- 

11,575 

To  bond  street  extension  assessments. 

23,826 

- 

9,206 

- 

To  take  police  out  of  civil  service. 

25,567 

- 

- 

13,537 

To  levy  general  tax  to  pay  water  bonds 

when  fund  is  short, 

24,287 

- 

- 

7,063 

To   authorize  city  engineer  to   make 

street  assessments. 

24,101 

- 

3,209 

- 

To  issue  public  market  bonds,     . 

25,274 

- 

- 

288 

To  create  pubUc  service  commission,   . 

24,248 

— 

— 

7,796 

281 


1^12  — Concluded. 


Measures  voted  on. 

Total 
Vote  on 
Measure. 

Per  Cent 

of 
Average 
Vote  for 
Officers. 

Majority. 

For. 

Against. 

To  charge  three  cents  toll  for  cars  on 
bridges,          . 

To  indorse  Greater  Portland  plans. 

To  grant  electric  company  franchise,  . 

•To  adopt  a  short  charter  creating  com- 
mission government, 

24,905 
24,198 
25,818 

24,655 

- 

9,711 

8.206 

21,924 

17,489 

Special  Election  on  Commission  Charter  and  Nominating  or  Primary  Elec- 
tion under  old  Charter  to  be  effective  if  Commission  Charter  failed  to 
carry. 

1913. 


To  adopt  the  commission  form  of  gov- 
ernment,       .  .  .  .  . 


34,342 


135.8 


292 


Average  vote  cast  for  candidates  for  seven  ofHces,  25,282;    highest  (mayor), 
30,674;  lowest  (city  attorney),  22.517. 


Regxdar  Election. 
1913. 


To  pension  firemen,  .... 

42,353 

99.6 

13,553 

_ 

To  grant  street  railway  franchise. 

40,236 

94.6 

- 

10,502 

To  repeal  railroad  franchise. 

37,009 

87.0 

- 

5,125 

To  repeal  railroad  franchise. 

36,854 

86.7 

- 

4.970 

To  issue  bonds  for  a  South  Portland 

bridge,            ..... 

39,467 

92.8 

- 

14,125 

To  issue  incinerator  bonds, 

38,954 

91.6 

6.812 

- 

To  pay  part  of  street  assessments  by 

city, 

36.421 

85.7 

- 

525 

To   issue   bonds   for   parks   and   play 

grounds,         ..... 

39,183 

92.2 

- 

7,621 

To  permit  indeterminate  sentences  for 

violation  of  city  laws,      . 

34,737 

81.7 

7.317 

- 

To  issue  bonds  for  historical  society 

building,         ..... 

38,113 

89.6 

- 

17.597 

To  ehminate  grade  crossings. 

34,534 

81.2 

9.560 

- 

To  issue  bonds  to  buy  Council  Crest 

Park, 

38,965 

91.6 

- 

12,643 

To  authorize  a  common  transportation 

terminal,        ..... 

33,775 

79.4 

9,055 

- 

To  retain  public  docks  commission,     . 

35,630 

83.8 

10,544 

Average  vote  for  six  city  officers,  42,494;    highest   (mayor),  45.521;    lowest 
(commissioner),  41,456. 


282 


Special  Election  December  9. 
1913. 


Total 
Vote  on 
Measure. 

Per  Cent 

of 
Average 
Vote  for 
Officers. 

Majority. 

For. 

Against. 

Improvement  bonding  account,  . 

To  exempt  certain  city  officers  from 
being  registered  voters,  . 

To  exempt  certain  city  officers  from 
being  citizens  of  United  States, 

To  allow  city  to  acquire  property  out- 
side of  city  limits,  .... 

To  make  efficiency  instead  of  date  of 
order  of  discharge  controlling  factor 
in  reappointment  of  civil  service  em- 
ployees,         ..... 

To  define  powers  of  municipal  court,   . 

To  change  methods  of  passage  of  ordi- 
nances,          ..... 

Amendment  in  reference  to  sale  of  pub- 
lic utiHty  certificates, 

To  exempt  certain  officers  from  civil 
service  regulations. 

To  require  council  to  act  by  ordinance. 

Regulating  sale  of  bonds  and  pubHc 
utility  certificates. 

Municipal  paving  bond  issue, 

Public  market  bond  issue. 

Park  and  playgrounds  bonds. 

To  amend  fireman's  pension  act, 

14,672 
14,591 
14,636 
14,164 

14,509 
14,111 

14,299 

14,192 

14,442 
14,000 

14,296 
14,622 
14,752 
14,765 
14,609 

- 

- 

5,132 
8,913 
9,714 
7,982 

4,131 
5,273 

4,211 

8.788 

7,634 
6,538 

4,076 
7,606 
4,398 
9,921 
1,231 

Regular  City  Electiov. 
1915. 


To  provide  water  meters,  . 

35,047 

105.7 

3,377 

To  adopt  a  Sunday  closing  ordinance. 

33,799 

101.9 

_ 

13,205 

To  provide  for  reappointment  in  order 

of  original  appointment  in  civil  serv- 

ice,       ...... 

26,960 

81.3 

8,090 

_ 

To  provide  garbage  system. 

33,395 

100.7 

_ 

7,327 

To  provide  method  of  eliminating  grade 

crossmgs,       ..... 

28,178 

85.0 

12,400 

_ 

To  turn  over  pound  to  Humane  So- 

ciety,   ...... 

31,040 

93.6 

8,324 

_ 

To  regulate  jitneys,  .... 

35,152 

106.0 

7,034 

_ 

To  provide  for  method  of  levying  street 

assessments,            .... 

28,144 

84.9 

5,880 

_ 

To  pension  firemen,  .... 

30,875 

93.1 

10,999 

_ 

To  erect  firesfops,      .... 

30,086 

90.7 

7,904 

_ 

To  annex  St.  Johns,  .... 

35,817 

108.0 

24,097 

_ 

To  annex  Linnton,     .... 

35,383 

106.7 

9,009 

- 

The  average  vote  for  three  city  ofiicers  was  33,504. 


283 


Recall  Election,  October  31,  1914- —  Vote  on  whether  City  Officials  shall 

be  recalled. 


Yes. 

No. 

Mayor  H.  R.  Albee 

Commissioner  R.  G.  Dieck,     ..... 
W.  L.  Brewster,     ....... 

15,455 
20,146 
17,896 

33.687 
28,297 
28,976 

First 
Choice. 

Second 
Choice. 

At  this  recall  election  — 
Albee  received  for  mayor,         ..... 
Dieck  received  for  commissioner,      .... 
Brewster  received  for  commissioner.           .        *. 

29,219 
23,679 
25.223 

385 
385 

Five  other  candidates  for  the  three  offices  received  a  total  of  48,888  first  choice 
votes  and  17,670  second  choice  votes.    One  ordinance  was  voted  on. 


Note.  —  Besides  the  tables  here  printed,  detailed  tables  showing  the  nature  of 
every  initiative  or  referendum  measure  ever  submitted  in  any  State  in  the  Union 
and  the  vote  thereon  have  been  compiled  and  may  be  consulted  in  the  State 
Librarj'. 


284 


BIBLIOGRAPHY. 

In  the  past  decade  the  "literature"  relating  to  the  Initiative 
and  Referendum  has  become  very  voluminous.  The  titles  in  a 
bibliography  of  the  subject  might  easily  be  extended  into  the 
hundreds.  It  has  been  determined  to  limit  sharply  the  sugges- 
tions here  presented.  For  further  titles,  see  "Select  List  of 
References  on  Initiative,  Referendum  and  Recall,"  by  H.  H.  B, 
Meyer,  Library  of  Congress,  1912.  Supplementary  lists  have 
been  compiled  in  the  Library  of  Congress  down  to  date.  Several 
of  the  books  mentioned  below  contain  extensive  bibliographies. 

Equity.  A  quarterly  review,  edited  by  Charles  F.  Taylor,  Philadelphia, 
which  for  a  decade  has  specialized  on  the  Initiative  and  Referendum, 
the  Recall,  etc.  Its  attitude  is  that  of  thoroughgoing  advocacy. 
Contains  a  mass  of  detail-information,  not  to  be  found  elsewhere.  Has 
published  Tables  of  Votings  on  Constitutional  Amendments  and  In- 
itiative and  Referendum  measures. 

Beard,  C.  A.,  and  Shultz,  B.  E.  Documents  on  the  State-wide  Initiative, 
Referendum  and  Recall.  Macmillan,  N.  Y.,  1912.  Contains  all  con- 
stitutional amendments  relating  to  these  subjects,  adopted  or  proposed, 
to  August,  1911,  and  much  illustrative  material,  and  analysis  of  im- 
portant court  decisions.  The  Introductory  Note  by  Professor  Beard 
is  very  discriminating. 

Annals  of  the  American  Academy  of  Political  and  Social  Science.  Special 
issue  of  September,  1912  (352  pp.),  devoted  entirely  to  the  Initiative, 
Referendum  and  Recall.  18  articles,  by  different  authors,  on  many 
phases  of  the  subject.  Of  especial  value:  W.  E.  Rappard  on  "Swiss 
Experience,"  and  W.  F.  Dodd  on  "The  Technique  of  Amendments." 
Contains  a  very  extensive  bibliography. 

Lowell,  A.  L.  PubKc  Opinion  and  Popular  Government.  Longmans, 
N.  Y.,  1914.  Part  III.,  "Methods  of  Expressing  Public  Opinion," 
pp.  113-233,  is  devoted  largely  to  the  Initiative  and  Referendum. 
The  author's  attitude  is  critical,  finding  little  promise  of  usefulness 
in  the  Initiative  and  Referendum.  Appendixes  A  and  B  contain  very 
valuable  Tables  of  Votings  on  measures  both  in  Switzerland  and 
America. 

Munro,  W.  B.,  ed.  The  Initiative,  Referendum  and  Recall.  Appleton, 
N.  Y.,  1912,  pp.  365.  Contains  a  discriminating  introductory  chapter 
by  the  editor  and  valuable  articles,  from  diverse  points  of  view,  by 
Theodore  Roosevelt,  Woodrow  Wilson,  A.  Lawrence  Lowell,  Samuel 
W.  McCall  and  others.    Bibliography. 


285 

Lobingier,  C.  S.  The  People's  Lnw.  Macmillan,  N.  Y.,  1900,  pj).  429. 
Mainly  historical,  in  its  elaborate  treatment  of  law-making  by  th(! 
people.  Especially  detailed  in  presentation  of  popular  ratification  of 
constitutions  and  amendments. 

Oberholtzer,  E.  P.  The  Initiative,  Referendum  and  Recall  in  America. 
Scribners,  N.  Y.,  1911.  A  standard  work.  The  first  15  chapters, 
published  in  1900,  are  an  historical  and  analytical  presentation  of  the 
early  forms  of  Referendum  in  America.  The  supplementary  chapters, 
covering  the  period  1900  to  1910,  are  harshly  critical  of  the  develop- 
ments of  that  decade. 

Wilcox,  D.  F.  Government  by  All  the  People,  or  The  Initiative,  Ref- 
erendum and  Recall  as  Instruments  of  Democracy.  Macmillan,  N.  Y., 
1912,  pp.  325.  Discussion  for  the  most  part  in  enthusiastic  defense  of 
these  methods  of  law-making  and  control. 

Dodd,  W.  F.  Revision  and  Amendment  of  State  Constitutions.  Johns 
Hopkins  University  Press,  Baltimore,  1910.  Within  its  restricted 
field,  its  treatment  of  the  Initiative  and  Referendum  is  dispassionate 
and  very  valuable. 

Holcombe,  A.  N.  State  Government  in  the  United  States.  Macmillan, 
N.  Y.,  1916,  pp.  498.  Chapter  XIII,  "Direct  Legislation  by  the  Elec- 
torates" discusses  many  of  the  most  up-to-date  phases  of  the  Initiative 
and  Referendum. 

Wisconsin  Library  Commission.  Comparative  Legislation  Bulletin, 
No.  25.  The  Initiative  and  Referendum  State  Legislation.  Com- 
piled by  Charles  H.  Talbot.    Madison,  1913. 

Oregon  is  the  State  whose  experience  with  the  Initiative  and 
Referendum  has  been  by  far  the  greatest,  and  its  institutions, 
therefore,  best  repay  intensive  study. 

Bamett,  J.  D.  The  Operation  of  the  Initiative,  Referendum  and  Recall 
in  Oregon.  Macmillan,  N.  Y.,  1915.  A  scholarly  and  very  valuable 
presentation  of  the  "Oregon  System." 

Hedges,  G.  L.  Where  the  People  Rule.  Bender-lMoss  Co.,  San  Fran- 
cisco, 1914.  Contains  valuable  information.  Opposed,  in  general,  to 
the  Oregon  practices. 

Montague,  R.  W.  The  Oregon  System,  at  Work.  Reprinted  from  the 
National  Municipal  Review,  April,  1914,  27  pp.  An  admirable  study, 
by  the  compiler  of  the  official  publication  of  the  statutes.  He  brings 
to  this  study  exceptional  knowledge  of  all  the  general  la\\-s  of  Oregon, 
and  notable  fairmindedness.  Includes  Tables  of  Votings  in  Oregon 
and  Portland  city  elections. 

Haynes,  G.  H.  A  Year  of  "People's  Rule  in  Oregon."  A  "laboratory 
report."  Political  Science  Quarterly,  Vol.  XXVI,  No.  1.  Reprinted 
in  The  Initiative,  Referendum  and  Recall,  ed.  by  W.  B.  Munro. 


286 

Holman,  F.  V.     The  Unfavorable  Results  of  Direct  Legislation  in  Oregon. 

An  Oregon  lawyer's  adverse  criticism.     Chapter  XI,  in  The  Initiative, 

Referendum  and  Recall,  ed.  by  W.  B.  Munro. 
U'Ren,  W.  S.     The  Results  of  the  Initiative  and  Referendum  in  Oregon. 

Proceedings  of  the  American  Political  Science  Association,  1907,  Vol. 

IV.,  pp.  193-197.    By  the  "Father  of  the  Oregon  System." 


BULLETIN   No.   7 


THE    PUBLIC    OPINION   LAW   OF 
MASSACHUSETTS 


THE  PUBLIC  OPINION  LAAV  OF 
MASSACHUSETTS. 


After  some  ten  years'  discussion  of  such  a  project,  the 
Massachusetts  General  Court,  by  the  so-called  "Public  0])iiHon 
Law"  of  1913  (c.  819),  gave  the  voters  of  this  Commonwealth 
an  opportunity  to  express  an  opinion  on  certain  questions  of 
public  policy,  duly  propounded  to  them,  in  their  several  dis- 
tricts. 

The  clearest  precedent  for  this  measure  was  the  Illinois 
statute  of  1901  (Laws  of  1901,  p.  198;  Rev.  Stat.  1906,  c.  46, 
sees.  428-429,  p.  967)  which  provided  for  what  has  been  called 
an  "Advisory  Initiative"  or  "Advisory  Referendum,"  by 
which,  upon  petition  of  10  per  cent  of  the  registered  voters, 
not  more  than  three  "questions  of  public  policy"  might  be 
submitted  to  the  voters  at  a  state  election;  and  a  similar 
submission  of  local  questions  was  made  possible  within  an 
individual  municipality.  Several  acts,  based  upon  a  ])ublic 
opinion  thus  educed  or  evidenced,  have  been  passed  by  the 
Legislature  of  Illinois.  But  the  law  has  given  only  moderate 
satisfaction.  Since  it  provides  merely  for  a  vote  expressive  of 
an  opinion,  and  not  for  an  "instruction"  to  the  members  of  the 
Legislature,  and  since  the  members  usually  have  not  been 
pledged  in  advance  to  support  these  measures,  the  voters' 
advice  on  "questions  of  public  pohcy"  is  treated  with  scant 
consideration.  Such  votes  are  cast  with  the  feeling  that  no 
serious  responsibility  rests  upon  that  action;  the  advice  is 
addressed  to  no  one  in  particular,  nor  is  it  expressed  in  the 
im])erative  mood. 

In  1906  the  question  was  referred  to  the  voters  of  Delaware: 
"Shall  the  General  Assembly  of  the  State  of  Delaware  provide 
a  system  of  ad\'isory  initiative  and  advisory  referendum?" 
Although  the  proposal  was  approved  by  a  popular  vote  of 
17,248  to  2,162,  the  Legislature  has  never  enacted  the  statute 
necessary  to  put  that  mandate  into  effect. 


290 

For  a  dozen  years  Texas  has  had  an  advisory  system  which 
enables  the  voters  in  any  political  party  to  propose  policies 
and  secure  a  direct  party  vote  thereon.  (Laws  1905,  First 
Called  Sess.,  c.  11,  sec.  140.) 

The  advocates  of  the  Massachusetts  "Public  Opinion  Law" 
of  1913  claimed  that  the  theory  underlying  this  statute  as  well 
as  its  phraseology  were  derived  from  Article  XIX  of  the  Massa- 
chusetts Bill  of  Rights  of  1780:  "The  people  have  a  right,  in  an 
orderly  and  peaceable  manner,  to  assemble  to  consult  upon  the 
common  good;  give  instructions  to  their  representatives,  ..."  etc. 
In  the  seventeenth  and  eighteenth  centuries,  before  the  adop- 
tion of  the  Massachusetts  Constitution,  the  instruction  of 
delegates  was  not  an  infrequent  thing.  In  quite  a  number  of 
instances  towns  instructed  their  representatives  between  1780 
and  1800;  but  in  every  one  of  these  instances  the  right  to  in- 
struct was  exercised  in  conjunction  with  the  other  right,  —  "to 
assemble  to  consult  upon  the  common  good."  In  other  words, 
the  instructions  were  presented,  debated  and  adopted  in  the 
very  town  meeting  in  which  the  individual  delegate  was  being 
elected,  and  it  was  his  privilege  to  take  part  in  the  debate  and 
to  decline  to  serve,  if  he  could  not  conscientiously  hold  himself 
to  compliance  with  the  instructions  thene  framed.  It  may  be 
doubted  whether  the  framers  of  the  Bill  of  Rights  had  in  mind 
any  other  mode  of  instructing  representatives  than  by  the  vote 
of  a  deliberative  body,  of  which  the  delegate  was  a  member. 

The  essential  features  of  the  law  of  1913  are  that,  on  applica- 
tion of  the  stipulated  number  of  registered  voters  (1,200  from  a 
senatorial,  and  200  from  a  representative  district)  asking  for  the 
submission  to  the  voters  of  that  district  of  any  question  of  in- 
struction to  its  member  of  the  Legislature,  if  the  Secretary  of 
the  Commonwealth  determines  that  the  question  which  they 
propose  is  in  substance  one  of  public  policy,  he  shall  draft  it  in 
clear  language  and  cause  it  to  be  placed  upon  the  ballot  in  that 
particular  district.  Not  more  than  two  questions  may  be  sub- 
mitted on  the  ballot  at  one  election,  and  they  shall  be  submitted 
in  the  order  in  which  the  applications  have  been  filed.  No 
question  negatived  and  no  question  substantially  the  same  shall 
be  submitted  again  in  less  than  three  years.  No  vote  under  the 
provisions  of  this  law  shall  be  regarded  as  an  instruction  under 


291 

Article  XIX  of  the  Bill  of  Rights,  unless  the  question  receives 
a  majority  of  all  votes  cast  at  that  election. 

In  the  first  year's  experience  with  the  working  of  this  law 
five  districts,  scattered  among  as  many  counties,  voted  upon  the 
question  of  instructing  their  representatives  to  support  a  con- 
stitutional amendment  providing  for  the  State-wide  Initiative 
and  Referendum,  and  in  every  one  of  these  districts  a  majority 
favored  that  proposal. 

In  the  following  year  (November  2,  1915)  that  same  question 
was  put  before  the  voters  in  one  other  district,  and  was  by 
them  approved.  Ten  districts  voted  on  the  question  of  in- 
structing their  representatives  to  favor  old-age  pensions  for 
persons  sixty-five  years  of  age  and  over  who  had  been  residents 
of  Massachusetts  for  fifteen  years;  and  in  each  of  these  cases  a 
majority  of  those  voting  on  the  question  favored  the  proposal. 
Three  districts  (together  comprising  Fall  River  and  three  con- 
tiguous towns)  voted  on  an  instruction  that  their  representa- 
tives should  vote  that  power  should  be  vested  in  cities  to  elect 
their  own  police  and  license  commissions;  and  in  two  of  these 
three  districts  the  vote  was  in  favor  of  the  proposal. 

But  whether  the  result  in  any  one  of  these  votings  of  the  years 
1914  and  1915  was  such  that  it  should  be  regarded  as  an  "in- 
struction under  Article  XIX  of  the  Bill  of  Rights"  is  a  question 
which  the  official  election  returns  published  by  the  Common- 
wealth do  not  answer,  for  the  "blanks"  are  not  there  listed. 

Greater  interest  than  ever  before  attached  to  the  votings  on 
public  opinion  questions  on  November  7,  1916.  Four  districts 
on  that  day  voted  on  the  question  of  instructing  representa- 
tives to  favor  non-contributory  old-age  pensions,  and  in  three 
cases  the  votes  cast  in  favor  exceeded  the  negative  votes  and 
the  blanks  on  that  question.  In  one  district  the  question  voted 
on  was:  "Shall  all  civil  pensions  be  abolished  until  such  time 
as  non-contributory  old-age  pensions  be  established?"  In  that 
district  the  "yes"  votes  failed  to  outweigh  the  "no"  votes  and 
the  blanks. 

But  the  chief  interest  centered  on  the  question  of  instructing 
representatives  to  favor  a  constitutional  amendment  providing 
for  the  Initiative  and  Referendum.  This  was  submitted  to  the 
voters  in  1  senatorial  and  36  representative  districts,  comprising 


292 

10  cities,  parts  of  6  other  cities  and  83  towns,  a  special  effort 
being  made,  it  is  stated,  to  secure  a  vote  on  that  issue  in  dis- 
tricts whose  representatives  in  the  General  Court  had  uni- 
formly voted  against  such  a  proposed  amendment.  In  every 
district  and  in  every  city,  ward  and  town  in  the  districts,  the 
majority  of  the  votes  cast  on  that  question  was  in  the  affirma- 
tive, with  the  single  exception  of  one  tiny  town,  where  three 
votes  were  "yes"  to  four  "no."  But  the  showing  is  by  no 
means  so  impressive  when  it  is  noted  how  large  a  proportion 
of  the  voters  ignored  the  question  altogether.  In  only  9  dis- 
tricts did  the  "yes"  vote  outweigh  the  "no"  vote  and  the 
blanks.  Accordingly,  only  9  out  of  the  37  members  of  the 
Legislature  chosen  in  those  districts  on  that  day  were  duly 
"instructed."  Of  the  total  number  of  votes  cast  in  all  the 
districts  on  that  question,  47  per  cent  were  in  favor  of  the 
proposed  instruction  and  12  were  opposed;  the  remaining  40 
per  cent  of  the  ballots  were  blank  on  that  question.  The  re- 
turns from  those  same  districts  on  the  question  of  the  call  of  a 
constitutional  convention  show  that  38  per  cent  of  their  total 
vote  was  cast  in  favor  of  that  proposal,  while  22  per  cent  op- 
posed it  and  40  per  cent  expressed  no  choice.  But  on  that 
question  the  blanks  were  not  taken  into  consideration  in  deter- 
mining the  decision. 

The  phrasing  of  the  law  of  1913  is  susceptible  of  several  dif- 
ferent meanings.  A  vote  within  a  district  is  not  to  be  regarded 
as  an  instruction  unless  "the  question  receives  a  majority  of  all 
votes  cast  at  the  election."  In  the  first  place,  this  might  be 
held  to  mean  a  majority  of  the  votes  cast  on  that  particular 
question.  In  an  election,  e.g.,  of  State  Treasurer  or  Auditor, 
the  candidate  is  successful  who  receives  a  plurality  of  votes 
cast  for  the  candidates  for  that  office,  no  matter  how  far  short 
that  aggregate  may  fall  of  the  votes  cast  for  candidates  for 
Governor.  In  the  great  majority  of  States  which  have  intro- 
duced the  Initiative  and  Referendum  the  majority  which 
decides  is  the  majority  on  the  question  that  is  submitted,  how- 
ever widely  that  aggregate  may  differ  from  the  vote  cast  for 
candidates.  A  second  reasonable  interpretation  of  the  require- 
ment that  "the  question  receive  a  majority  of  all  votes  cast  at 
the  election"  would  be  that  the  question  should  call  forth  an 


293 

expression,  one  way  or  the  other,  from  a  majority  of  those  who 
voted  on  that  day.  Something  might  be  said  in  favor  of  such  a 
regulation.  It  would  seem  that  a  measure  of  any  considerable 
moment  might  be  so  presented  to  the  voters  that  a  majority  of 
those  who  went  to  the  polls  would  be  interested  and  intelligent 
enough  to  vote  for  or  against  it;  and  an  approval  by  at  least 
25  per  cent  of  those  voting  would  assure  to  the  measure  a  re- 
spectable backing.  But  the  accepted  meaning  of  the  require- 
ment is  that  the  "yes"  vote  on  the  proposed  instruction  must 
exceed  not  only  the  "no"  votes  on  that  question  but  also 
in  addition  all  the  blanks  on  that  question;  in  other  words, 
the  instruction  must  be  backed  by  an  absolute  majority  of  the 
total  number  who  voted  at  all  at  that  election,  —  e.g.,  for  can- 
didates for  Governor.  This  is  insisting  upon  a  severer  test  than 
is  applied  in  the  election  of  most  officers.  State  and  Federal. 
Most  Presidents  and  Governors  are  elected  by  a  minority  vote. 
Had  this  test  of  an  absolute  majority  of  the  vote  for  candidates 
for  Governor  been  applied  to  the  votings  by  which  forty-four 
amendments  have  been  added  to  the  Constitution  of  this  Com- 
monwealth, only  two  (Amendments  XLIII  and  XLIV)  would 
have  been  ratified  by  the  votes  which  did  actually  make  them 
effective. 

Votes  upon  Questions  of  Public  Policy. 

(Under  the  Act  of  1913,  Chapter  819.) 

Experience  under  this  law  covers  but  three  years,  and  it 
seems  desirable  to  make  the  following  tabulation  present  the 
results  of  all  the  votings  that  have  actually  been  taken.  In  this 
brief  record  it  is  of  interest  to  note  the  districts  of  the  Com- 
monwealth which  have  availed  themselves  of  this  opportunity, 
the  type  of  question  upon  which  votings  have  been  taken,  the 
proportion  of  districts  which  have  voted  "yes,"  and  the  relation 
which  the  "yes"  vote  has  borne  to  the  total  number  of  votes 
cast  at  that  election. 

In  the  votings  for  the  years  1914  and  1915  the  statistics  have 
been  taken  from  the  official  reports  issued  by  the  Secretary  of 
the  Commonwealth,  supplemented  by  statements  of  the  total 
aggregate  vote  for  candidates  for  Governor  supplied  to  the 
present  compiler  by  the  clerks  of  the  several  towns  and  cities; 


294 


and  the  number  of  blanks  has  been  determined  by  subtracting 
the  sum  of  the  "yes"  and  "no"  votes  from  the  aggregate  vote 
for  Governor. 

November  5,   1914- 
Question  1.  —  "  Shall  the  Representative   from  this   district 
be  instructed  to  support  the  Initiative  and  Referendum,  so  as  to 
give  the  voters  the  power  to  accept  or  reject  at  the  polls  meas- 
ures that  have  been  proposed  by  petition?" 


Yes  (Per 

District. 

Yes. 

No. 

Blanks. 

Cent 

of  Total 

Vote). 

Eighth  Bristol  Representative : 

New  Bedford,  Wards  4,  5,  and  6, 

2,655 

1,121 

1,039 

55 

First  Hampden  Representative: 

Brimfield,  Holland,  Monson,  Palmer, 

Wales,         ..... 

953 

300 

732 

48 

Fourth  Middlesex  Representative: 

Newton,          ..... 

3,370 

1,566 

1,151 

55 

Fifth  Middlesex  Representative: 

Waltham,       ..... 

2,803 

746 

1,390 

57 

Seventh  Middlesex  Representative: 

Wejonouth,    ..... 

1,307 

274 

954 

52 

November  2,  1915. 
Question  1.  —  "  Shall  the  Representative  from  this  district  be 
instructed  to  support  the  Initiative  and  Referendum,  so  as  to 
give  the  voters  the  power  to  accept  or  reject  at  the  polls  meas- 
ures that  have  been  proposed  by  petition  or  to  reject  at  the 
polls,  upon  petition,  measures  that  have  been  passed  by  the 
General  Court?" 


District. 

Yes. 

No. 

Blanks. 

Yes  (Per 
Cent 

of  Total 
Vote). 

Ninth  Essex  Representative: 

Andover,        ..... 

761 

■     252 

410 

53 

Question  2.  —  "  Shall  the  Representative  from  this  district  be 
instructed  to  vote  for  Non-contributory  Old  Age  Pensions,  so  as 
to  have  the  Commonwealth  pension  its  deserving  needy  aged 


295 


citizens,  women   and  men,   over  sixty-five  years  of  age,   and 
residents  of  the  Commonwealth  for  at  least  fifteen  vears?" 


Yes  (Per 

DiSTKICT. 

Yes. 

No. 

Blanks. 

Cent 

of  Total 

Vote). 

Fifth  Essex  Representative : 

Lawrence,  Wards  1  and  2,  and  Me- 

thuen,         ..... 

3,083 

893 

1,076 

61 

Sixth  Essex  Representative: 

Lawrence,  Wards  3  and  4, 

1,788 

342 

552 

66 

Seventh  Essex  Representative: 

Lawrence,  Ward  5, 

1,246 

376 

387 

62 

First  Middlesex  Representative: 

Cambridge,  Wards  1,  2  and  3, 

1,554 

236 

505 

68 

Second  Middlesex  Representative: 

Cambridge,  W'ards  4,  5,  6  and  7, 

3,750 

997 

1,051 

65 

Third  Middlesex  Representative: 

Cambridge,  W^ards  8,  9,  10  and  11,  . 

3,393 

1,485 

1,078 

56 

Fifth  Plj^Tnouth  Representative: 

Abington,  Whitman, 

1,649 

401 

462 

65 

Ninth  Plymouth  Representative: 

Brockton,  W'ards  3  and  4, 

2,055 

361 

340 

74 

Tenth  Pljinouth  Representative: 

Brockton,  Wards  1,  2  and  5,     . 

2,957 

616 

501 

72 

Eleventh  PljTnouth  Representative: 

Brockton,  Wards  6  and  7, 

2,216 

364 

318 

76 

Question  3.  —  "  Shall  the  Representative  from  this  district 
be  instructed  to  vote  that  the  power  to  select  police  and  license 
commissioners  in  cities  be  vested  in  cities?" 


Yes  (Per 

District. 

Yes. 

No. 

Blanks. 

Cent 

of  Total 

Vote). 

Ninth  Bristol  Representative: 

Fall  River,  W^ards  1  and  2,  Westport, 

2,170 

1,909 

4411 

60 

Tenth  Bristol  Representative: 

Fall  River,  Wards  3,  4  and  5,  . 

1,976 

1,149 

450 

55 

Eleventh  Bristol  Representative: 

Fall  River,  Wards  6,  7,  8  and  9,  Som- 

erset, Swansea,    .... 

2,654 

3,277 

753 

39 

'  Excess.    According  to  the  city  clerk's  repwrt  the  vote  on  this  particular  question  in  this 
district  exceeded  the  total  vote  for  all  candidates  for  Governor  by  441. 


In  the  following  tabulation  of  the  statistics  of  the  votings  of 
November  7,  1916,  the  figures  for  the  "yes"  and  "no"  votes 
have  been  taken  from  the  official  reports  issued  by  the  Secre- 


296 


tary  of  the  Commonwealth;  the  figures  as  to  the  "blanks"  are 
here  given  as  reported  to  the  compiler  by  the  Massachusetts 
Civic  Alliance,  bj^  whom  they  were  secured  from  the  clerks  of 
the  several  cities  and  towns.  In  the  fourth  column  the  "yes" 
vote  has  been  figured  as  a  percentage  of  the  total  vote,  —  the 
sum  of  the  figures  in  the  first  three  columns. 


November  7,  1916. 

Question  1.  —  "Shall  the  Representative  or  Representatives 
from  this  district  be  instructed  to  support  the  adoption  of  an 
amendment  to  the  Constitution  of  the  Commonwealth  provid- 
ing for  some  form  of  the  Initiative  and  Referendum  which  shall 
give  to  the  voters  the  power  to  accept  or  reject  statutes  and 
constitutional  amendments  proposed  to  the  Legislature  by  peti- 
tion of  a  substantial  number  of  citizens  but  rejected  by  it,  and 
also  the  power,  upon  such  petition,  to  reject  measures  passed 
by  the  Legislature?" 


District. 


Yes  (Per 

Cent 
of  Total 

Vote). 


First  Essex  Senatorial: 

Lynn,  Wards  1,  2,  3,  4,  5  and  7,  Na- 
hant,  Swampscott, 
First  Barnstable  Representative: 

Barnstable,       Bourne,       Falmouth, 
Mashpee,  Sandwich,     . 
Second  Berkshire  Representative: 
Hancock,      New     Ashford,      North 
Adams,  Wards   1,  2  and  7,   Wil- 
liamstown,  ... 

Fourth  Berkshire  Representative: 

Lanesborough,  Pittsfield, 
Sixth  Berkshire  Representative: 

Alford,  Egremont,  Great  Barrington 
Mount    Washington,    New    Marl- 
borough,     Sandisfield,      Sheffield 
Stockbridge,  West  Stockbridge, 
First  Bristol  Representative: 

Attleboro,  North  Attleborough, 
Ninth  Bristol  Representative: 

Fall  River,  Wards  1  and  2,  Westport 
Third  Essex  Representative: 
Haverhill,  Wards  4  and  6, 
Fourth  Essex  Representative: 

Boxford,     Georgetown,     Groveland 
Haverhill,  Wards  5  and  7,     . 
Sixth  Essex  Representative: 
Lawrence,  Wards  3  and  4, 


7,559 

2,101 

5,025 

873 

332 

1,288 

841 

237 

1,152 

3,217 

975 

3,119 

901 

322 

1,348 

2,367 

423 

3,721 

2,051 

751 

2,105 

1,208 

528 

1,048 

2,009 

606 

1,755 

1,402 

277 

1,230 

51 
35 

38 

44 

34 
36 
42 
43 

46 

47 


297 


Yes  (Per 

District. 

Yea. 

No. 

Blanks. 

Cent 

of  Total 

Vote). 

Thirteenth  Essex  Representative: 

Lynn,  Wards  1,  6  and  7,  Lynnfield, 

Saugus,       ..... 

3,472 

771 

2,735 

49 

Nineteenth  Essex  Representative: 

Beverly,  Wards  1,  2,  3  and  5,  . 

1,258 

416 

1,001 

47 

Twenty-first  Essex  Representative: 

Gloucester,  Wards  3,  4,  5,  6  and  8,  . 

913 

305 

1,187 

38 

Eighth  Hampden  Representative: 

Chicopee,        ..... 

1,564 

332 

1,550 

45 

Twelfth  Hampden  Representative: 

Westfield,       .           .     •      . 

1,187 

357 

1,157 

44 

Fourth  Hampshire  Representative: 

Belchertown,  Enfield, Granby,  Green- 

wich, Pelhani,  Prescott,  Ware, 

678 

394 

1,024 

32 

First  Middlesex  Representative: 

Cambridge,  Wards  1,  2  and  3, 

1,002 

200 

1,129 

43 

Second  Middlesex  Representative: 

Cambridge,  Wards  4,  5,  6  and  7, 

3,079 

763 

2,443 

49 

Third  Middlesex  Representative: 

Cambridge,  Wards  8,  9,  10  and  11,   . 

3,039 

1,124 

2,188 

48 

Thirteenth  Middlesex  Representative: 

Concord,    Lincoln,    Sudbury,    Way- 

laud,  Weston,      . 

1,016 

419 

1,024 

41 

Eighteenth  Middlesex  Representative: 

Reading,  Stoneham,  Woburn, 

2,964 

607 

2,294 

50 

Twenty-first  Middlesex  Representative: 

Maiden,          ..... 

3,809 

933 

2,663 

51 

Twenty- third    Middlesex    Representa- 
tive : 
Somerville,  Wards  1,  3,  4  and  5, 

3,274 

768 

1,954 

55 

Twenty-fourth  Middlesex  Representa- 
tive : 
Soiner%-ille,  Wards  2,  6  and  7, 

3,864 

786 

2,111 

57 

Twenty-fifth     Middlesex    Representa- 
tive : 
Medford,  Winchester, 

1,313 

386 

853 

51 

Twenty-seventh  Middlesex  Representa- 
tive : 
Arlington,       ..... 

1,683 

373 

757 

59 

Second  Norfolk  Representative: 

Brookline,      ..... 

2,988 

1,342 

1,322 

52 

Third  Norfolk  Representative: 

Quincy,           ..... 

3,110 

839 

2,522 

48 

Seventh  Norfolk  Representative: 

Randolph,  Sharon,  Stoughton, 

1,2.37 

267 

1,181 

46 

Second  Pljinouth  Representative: 

Duxbury,  Marshfield,  Norwell,  Pem- 

broke, Soituate,  .... 

674 

210 

940 

37 

Third  Plj^mouth  Representative: 

Cohasset    (Norfolk   County),    Hing- 

ham,  Hull,            .... 

821 

279 

856 

42 

Seventh  Pl>-mouth  Representative: 

Halifax,    Kingston,    Middleborough, 

Plympton,             .... 

796 

190 

869 

43 

Eighth  Plymouth  Representative: 

Bridgewater,  East  Bridgewater,  West 

Bridgewater,        .... 

954 

197 

975 

45 

298 


Yes  (Per 

District. 

Yes. 

No. 

Blanks. 

Cent 

of  Total 

Vote). 

Sixth  Suffolk  Representative: 

Boston,  Ward  6,     . 

1,821 

300 

1,385 

52 

Sixth  Worcester  Representative: 

Auburn,  Oxford,  Webster, 

1,203 

212 

1,332 

44 

Ninth  Worcester  Representative: 

Grafton,  Milford,  Shrewsbury,  South- 

borough,  Upton,  Westborough, 

2,109 

540 

2,538 

40 

Tenth  Worcester  Representative: 

Berlin,    Bolton,    Boylston,    Clinton, 

Harvard,       Holden,       Lancaster, 

Northborough,  Princeton,  Sterling, 

West  Boylston,   .... 

1,787 

469 

2,359 

39 

Question  2.  —  "  Shall  the  Representative  from  this  District  be 
instructed  to  vote  for  Non-contributory  Old  Age  Pensions,  so 
as  to  have  the  Commonwealth  pension  its  deserving  aged  citi- 
zens, women  and  men,  over  sixty-five  years  of  age,  who  are 
unable  to  properly  provide  for  themselves,  and  who  have  been 
residents  of  the  Commonwealth  for  at  least  fifteen  years  prior 
to  the  filing  of  an  application  for  a  pension?" 


Yes  (Per 

District. 

Yes. 

No. 

Blanks. 

Cent 

of  Total 

Vote). 

Eighth  Bristol  Representative: 

New  Bedford,  Wards  4,  5  and  6, 

3,561 

1,140 

1,705 

55 

Ninth  Suffolk  Representative: 

Boston,  Ward  9 

1,793 

261 

1,676 

48 

Tenth  Suffolk  Representative: 

Boston,  Ward  10,   . 

2,197 

446 

1,449 

54 

Eleventh  Suffolk  Representative: 

Boston,  Ward  11 

2,157 

369 

1,388 

55 

Question  3.  —  "Shall  all  civil  pensions  now  paid,  including 
those  paid  to  members  of  the  Judiciary,  excluding  police  and 
firemen,  be  abolished  until  such  time  as  Non-contributory  Old 
Age  Pensions  be  established?" 


District. 

Yes. 

No. 

Blanks. 

Yes  (Per 
Cent 

of  Total 
Vote). 

Seventh  Norfolk  Representative: 
Randolph,  Sharon,  Stoughton, 

971 

506 

1,208 

36 

BULLETIN   No.   8 


COUNTY    GOVERNMENT    IN 
MASSACHUSETTS 


CONTENTS. 


PAGE 

I.    The  Meaning  of  County  Government, 303 

1.  Early  English  Histor}-, 303 

2.  Translation  to  Massachusetts, 304 

II.    Growth  and  Development  of  County  Offices  in  Massachu- 
setts,      305 

1.  Colonial  Period, 306 

2.  Provincial  Period, 310 

3.  The  Commonwealth  Period, 311 

III.     County  Government  in  the  Various  Counties  of  the  Com- 
monwealth,          315 

1.  Political, 315 

2.  Elective  and  Appointive  Officers, 316 

Elective  Officers, 317 

(o)  County  Commissioners, 317 

(b)  Clerks  of  Courts, 321 

(c)  Sheriffs, 323 

(d)  County  Treasurers, 325 

(e)  District  Attorneys, 327 

(/)   Registers  of  Deeds, 329 

(g)  Registers  of  Probate, 332 

Appointive  Officers, 334 

(a)  Justices  of  County  Courts, 334 

(6)  Clerks  of  District  and  Municipal  Courts,         .  335 

(c)  Medical  Examiners, 335 

(d)  Count}'  Auditors, 336 

IV.    Houses  of  Correction  and  Jails, 338 

V.    Reform  Schools, 340 

VI.    The  Fee  and  Civil  Service  Systems  in  County  Government,  341 

1.  Fee  System, 341 

2.  Civil  Service, 342 

VII.    jMandatory  Legislation  affecting  Counties  in  Massachusetts,  343 

Appendix.  —  Statistical  Tables  and  Synopses, 346 

Bibliography, 352 


COUNTY  GOVERNMENT  IN  MASSACHUSETTS. 


I.    THE  MEANING  OF  COUNTY  GOVERNMENT. 
1.    Early  English  History. 

County  government  in  Massachusetts  and  in  the  United 
States  is  modeled  largely  upon  the  old  English  county  which 
has  existed  from  ancient  Saxon  times.  To  understand  the 
organization  and  administration  of  county  government  in  any 
of  the  States  of  the  Union  it  is  necessary  to  trace  back  the 
development  from  its  English  prototype. 

The  English  colonists,  coming  to  these  shores  in  the  seven- 
teenth century,  brought  with  them  their  traditions  as  to  county 
governments,  and  for  the  purpose  of  their  judicial  systems  adopted 
the  form  of  county  government  then  existing  in  England. 

The  development  in  America,  however,  from  the  time  of  the 
Revolution  has  been  different  in  a  large  measure  from  the 
development  of  the  English  county.  About  one-third  of  the  old 
English  counties  represented  ancient  kingdoms  or  tribal  divi- 
sions; others  were  artificially  bounded  areas,  lying  around  some 
stronghold  which  had  become  a  center  of  civil  and  military 
administration.  Under  the  Saxon  kings  each  of  these  counties, 
or  areas,  was  to  a  large  extent  independent  of  a  central  adminis- 
trative authority,  although  the  Saxon  kings,  varying  according 
to  the  strength  of  these  semi-independent  areas,  maintained  a 
hegemony  over  them.  With  the  coming  of  the  Norman  kings, 
however,  these  counties  or  tribal  divisions,  kingdoms  and  sub- 
kingdoms,  were  united  under  a  central  authority  radiating  from 
the  chief  city,  London,  and  the  existence  of  the  counties  as 
independent  units  ceased. 

After  the  Norman  conquest  tbe  word  county  (old  French 
conte,  or  territory  of  a  count)  was  substituted  for  the  old 
Saxon  designation  of  "shire,"  and  the  latter  has  now  come  to 
common  use  as  a  synonym  for  county,  although  it  was  formerly 
applied  to  smaller  divisions  of  territory  than  a  county. 

The  administration  of  a  county  before  the  Norman  Conquest 
was  in  the  hands  of  two  officers,  the  earl  (ealdorman)  and  the 


304 

sheriff  (scirgerefa),  but  after  William  the  Conqueror  the  earl 
was  less  prominent  in  the  administration  of  the  countj'  and 
the  sheriff  became  the  principal  officer  of  the  Crown.  The 
sheriff  remained  the  principal  officer  in  the  county  until  the 
fourteenth  century,  when  his  military  functions  were  taken  from 
him  and  were  transferred  to  a  Lord  Lieutenant,  appointed 
directly  by  the  Crown  or  by  the  Chancellor,  and  responsible  to 
the  appointing  power.  In  the  seventeenth  century,  when  the 
first  English  settlers  left  for  the  shores  of  America,  there  were 
five  distinct  officers  in  each  county:  — 

(1)  Lord-Lieutenant,  head  of    the  military  system,  appointed    by  the 

Crown. 

(2)  Sheriff,  the  chief  conservator  of  the  peace  and  the  executive  agent  of 

the  judicial  courts,  appointed  by  the  Crown. 

(3)  Justices  of  tlie  Peace,  appointed  bj^  the  Crown  and  forming  in  each 

county  a  quarterly  court  of  criminal  jurisdiction,  and  acting  as  the 
fiscal  and  administrative  authority  for  county  affairs. 

(4)  Coroners,  chosen  in  the  county  courts;    their  duties  related  to  in- 

quests on  deaths  bj^  violence. 

(5)  Commissioners,  appointed  by  county  courts  to  assess  taxes. 

2.    Translation  to  Massachusetts. 

There  are  three  types  of  counties  in  the  United  States,  repre- 
sented by  those  in  New  England  (Massachusetts),  those  in  the 
South  (Virginia),  and  those  in  the  West  (Michigan,  Illinois, 
Indiana  and  California),  and  the  county  has  been  given  more 
attention  in  the  two  latter  sections  of  the  country  than  in  the 
New  England  States.  In  the  New  England  States  the  county 
is  principally  a  judicial  district,  created  for  the  administration  of 
justice,  and  is  not  a  unit  for  the  administration  of  the  legislative 
functions  of  the  Commonwealth  nor  for  political  organization. 
In  the  South  it  is  independent  of  State  control  in  administrative 
matters,  and  in  the  West  it  is  being  allowed  an  ever-increasing 
freedom  in  legislative  administration. 

County  administration  has  received  most  attention  in  the 
western  States,  where  its  importance  as  a  governmental  unit  has 
been  emphasized,  Michigan  having  recently  given  large  legisla- 
tive powers  to  its  county  boards.  In  New  England,  however, 
on  account  of  the  highly  centralized  judicial  system,  and  the 
importance  of  the  towns  and  cities,  the  county  exercises  very 


.^M 


305 

little  independent  jurisdiction.  Thus  in  many  States  the  county 
is  often  organized  as  a  school  district  or  as  a  sanitary  district, 
but  this  is  not  true  of  Massachusetts  or  of  any  other  New  Eng- 
land State.  In  Massachusetts  the  character  of  the  county 
government  has  remained  almost  quiescent  for  a  century  or 
more,  no  fundamental  change  having  taken  place  during  that 
period.  As  early  as  1643  there  were  four  counties  established 
in  Massachusetts  for  judicial  purposes.  They  were  the  counties 
of  Suffolk,  Middlesex,  Norfolk  and  Essex,  and  before  the 
Revolution  twelve  of  the  present  fourteen  counties  in  Massa- 
chusetts were  incorporated.  The  number  of  counties  varies  in 
different  States.  Thus  Texas  has  243,  Rhode  Island  5  and 
Delaware  3. 

The  early  county  officials  were  appointive,  acting  on  the 
English  model  (although  sheriffs  were  elective  in  Pennsylvania 
in  1705),  but  after  the  Revolution  a  radical  democratic  and 
decentralized  system  was  established.  County  officials  in  Mas- 
sachusetts were  made  locally  elective  and  their  numbers  were 
increased. 

II.    GROWTH   AND    DE^HELOPMENT    OF    COUNTY    OFFICES 
IN  MASSACHUSETTS. 

1.    Colonial  Period. 

The  Massachusetts  Bay  Company  was  organized  in  England 
for  the  establishment  of  a  colony  in  New  England.  Under  a 
charter  granted  by  King  Charles  I,  the  colonists  came  to  Mas- 
sachusetts Bay  in  1630  and  established  a  colony  at  Boston. 

The  charter  provided  that  the  officers  of  the  company  should 
consist  of  a  Governor,  Deputy  Governor  and  eighteen  Assist- 
ants. These  officers  were  to  be  chosen  annually  by  a  General 
Court,  which  consisted  of  the  charter  officers  and  the  freemen  of 
the  colony. 

This  General  Court  was  directed  by  the  charter  to  sit  four 
times  a  year  to  make  laws  for  the  colony.  In  addition,  there 
was  provided  a  Court  of  Assistants,  consisting  of  the  Governor, 
Deputy  Governor  and  the  assistants,  sitting  each  month,  "for 
the  better  ordering  and  directing  of  affairs." 

Originally  all  malefactors  were  brought  before  the  General 
Court  for  trial  and  punishment,  but  this  being  found  a  burden 


306 

and  not  conducive  to  the  speedy  administration  of  justice,  the 
Court  of  Assistants  on  August  23,  1630,  authorized  the  Governor 
and  the  Deputy  Governor  and  four  other  citizens  whom  they 
named  to  be  justices  of  the  peace  with  power  to  reform  abuses 
and  punish  offenders. 

As  the  colony  grew  rapidly  in  number  of  settlers,  and  their 
dwellings  and  places  of  labor  spread  beyond  easy  reach  of  the 
first  settlement,  the  authorities  found  it  inconvenient  to  bring 
all  cases  to  Boston,  and  on  March  3,  1635,  the  General  Court 
established  Quarter  Courts  at  Ipswich,  Salem,  New  Towne  and 
Boston,  these  to  be  kept  by  such  magistrates  as  dwelt  in  or  near 
said  towns,  and  by  such  others  as  were  appointed  by  the  Gen- 
eral Court,  so  as  to  make  four  in  number.  These  courts  had 
jurisdiction  over  all  criminal  cases,  except  capital,  and  all  civil 
where  the  debt  or  damage  did  not  exceed  £10.  At  the  same 
time  a  Great  Quarter  Court,  or  a  court  of  appeal,  was  estab- 
lished at  Boston,  consisting  of  the  Governor  and  assistants. 

At  the  beginning  of  1639,  therefore,  the  judicial  system  had 
these  divisions:  first,  the  General  Court  sitting  twice  a  year; 
second,  the  Court  of  Assistants  or  Great  Quarter  Courts,  com- 
posed of  the  Governor,  Deputy  Governor  and  assistants,  sitting 
four  times  a  year  at  Boston;  third,  the  four  inferior  courts  (or 
Quarter  Courts)  kept  by  magistrates,  with  associates  appointed 
by  the  General  Court. 

In  that  year,  however  (1639),  the  law  was  amended  so  that 
the  Court  of  Assistants  sat  only  twice  a  year  at  Boston  to  hear 
appeals  from  the  inferior  court,  causes  of  divorce,  capital  and 
such  criminal  offences  as  would  merit  death  or  banishment. 
At  the  same  time  "County  Courts"  were  established,  though 
the  counties  had  not  then  been  set  off.  These  were  the  old 
inferior,  or  Quarter  Courts.  The  manner  of  choosing  the  mem- 
bers of  the  court  was  not  changed,  but  each  court  was  given 
authority  to  establish  its  own  clerk  and  other  needful  ojQBcers. 

In  the  same  year  a  Strangers'  Court  was  established,  to  con- 
sist of  the  Governor,  Deputy  Governor  and  any  two  magis- 
trates, or,  when  the  Governor  was  not  available,  any  three 
magistrates.  This  court  was  authorized  to  hear  and  determine 
all  causes  which  should  arise  between  strangers,  or  in  which  a 
stranger  was  a  part. 


-I 


307 

For  the  proper  oversight  of  the  business  of  the  colony  it  was 
ordered  by  the  General  Court,  on  September  9,  1G39,  that  a 
record  should  be  kept  at  Boston  of  all  wills,  administrations, 
inventories,  births,  deaths  and  marriages  by  a  recorder.  In  the 
next  year,  October  7,  for  greater  convenience,  recorders'  offices 
were  also  established  at  Ipswich  and  Salem  and  the  recorders 
were  designated  as  the  clerks  of  the  courts  held  in  each  town. 

Two  years  later,  on  June  14,  1642,  again  for  greater  con- 
venience, the  General  Court  established  the  office  of  clerk  of  the 
writs  (corresponding  to  present  town  aiid  city  clerks)  in  each  of 
the  towns,  the  appointments  to  which  were  made  by  the  Gen- 
eral Court.  These  officials  took  from  the  formerly  established 
recorders  the  task  of  recording  births,  deaths  and  marriages. 

The  number  of  towns  having  grown  to  30  and  being  scattered 
over  a  wide  territory,  for  the  greater  convenience  again  of  the 
administration  of  the  business  of  the  colonists,  by  act  of  the 
General  Court  on  May  10,  1G43,  the  colony  was  divided  into 
four  "sheires"  or  counties,  to  be  known  as  Essex,  Middlesex, 
Suffolk  and  Norfolk.  Each  was  authorized  to  conduct  its  own 
affairs,  but  the  act  creating  them  did  not  specify  the  offices  to 
be  established.  Each  county,  however,  established  an  organiza- 
tion along  the  lines  of  the  county  organization  of  England. 

The  above  mentioned  Norfolk  contained  largel}^  towns  that 
were  included  in  New  Hampshire  when  that  become  a  royal 
province.  The  county  became  extinguished  in  1679,  and  Ipswich, 
the  "sheire  town,"  and  the  other  Massachusetts  towns  in  that 
county  became  a  part  of  Essex  County. 

In  1647  the  General  Court  gave  each  county  court  the  author- 
ity to  appoint  clerks  of  the  \\Tits  for  each  town,  which  relieved  the 
General  Court  of  this  task.  Also  in  order  to  relieve  the  count}' 
courts  of  small  causes,  the  General  Court  passed  an  act  author- 
izing any  magistrate  (member  of  the  assistants)  where  he  dwelt 
to  hold  court  for  cases  arising  in  his  home  town  or  district, 
wherein  the  debt,  trespass  or  damage  did  not  exceed  40  shill- 
ings; and  it  was  further  ordered  that  in  such  towns  where  no 
magistrate  dwelt,  the  court  of  assistants,  or  the  county  court, 
could  appoint  three  freemen  to  sit  as  commissioners  to  hear  such 
cases.  In  these  towns  the  clerk  of  the  writs  had  the  power  to 
issue  summonses,  etc.,  to  secure  the  attendance  of  witnesses,  etc. 


308 

In  1651  the  General  Court  enacted  a  law  providing  that 
seven  freemen  selected  by  the  freemen  of  Boston  should  serve 
as  commissioners  for  Boston  to  hear  and  determine  civil  actions 
not  exceeding  ten  pounds.  These  commissioners  were  authorized 
to  appoint  a  clerk,  to  fix  fees  for  entry  of  cases,  and  to  pass  upon 
misdemeanors  as  would  any  magistrate,  provided  the  fines  im- 
posed did  not  exceed  forty  shillings  for  one  offence.  This  court 
lasted,  however,  only  one  year. 

In  1652  the  offices  of  recorder  and  clerk  of  the  county  courts 
were  officially  merged,  though  the  duties  of  each  office  were  pre- 
viously performed  invariably  by  one  and  the  same  person. 

By  an  act  of  the  General  Court  on  May  3,  1654,  the  counties 
were  each  authorized  to  elect  a  county  treasurer,  who  should 
apportion  and  collect  the  county  rates,  or  taxes.  The  next  year 
each  county  was  ordered  by  the  General  Court  to  establish  a 
House  of  Correction. 

On  April  29,  1668,  the  General  Court  authorized  each  county  to 
have  two  commissioners  appointed  by  the  General  Court,  whose 
duties  were  to  repair  warehouses,  supervise  the  business  of  the 
county,  and  principally  list  the  taxpayers  and  assess  the  taxes. 

On  May  27,  1685,  each  county  was  authorized  to  probate 
wills,  the  duty  originally  of  the  Governor  and  the  Court  of  Assist- 
ants, and  each  county  court  was  designated  as  the  Court  of 
Probate  for  the  county. 

In  this  year  also  the  General  Court  authorized  the  establish- 
ment of  a  court  of  chancery,  to  consist  of  the  magistrates  of 
each  county  court,  to  pass  upon  cases  wherein  there  was 
apparent  equity,  and  authorized  the  county  courts  to  hear  and 
determine  all  cases  relating  to  wills  and  administrations. 

Summary  to  1684-  —  At  the  end  of  the  Colonial  Period  in 
1684  these  county  courts  and  offices  had  been  established:  — 

Magistrates'  Court  in  each  town  (1647). 

Quarter  courts  (1635),  which  became  "County  Courts"  (1659),  at  Ips- 
wich, Salem,  New  Towne  (afterwards  Cambridge)  and  Boston. 

Strangers'  Court  for  the  colony  (1639). 

Court  of  Assistants,  sitting  twice  a  year  at  Boston  (1639),  which  orig- 
inally sat,  according  to  the  charter,  once  a  month  and  according  to 
act  of  1635  sat  four  times  a  year. 

Recorder  of  wills,  administrations  and  inventories  at  Boston  (1639), 
and  at  Ipswich  (1640)  and  Salem  (1640). 


309 

Clerks  of  the  Writs  in  each  town  (recorder  of  births,  deaths  and  mar- 
riages), appointment  by  General  Court  (1642),  appointment  b}'  County 
Courts  (1G47). 

Counties  estabUshed  at  Essex,  Middlesex,  Suffolk  and  Norfolk,  each 
having  its  own  organization  (1643),  (Norfolk  extinguished  in  1679); 
Hampshire  (1662). 

Offices  of  County  Recorder  and  Clerk  of  County  Courts  officially  made 
one  and  same  office  (1652). 

County  Treasurer  in  each  county  (1654). 

Two  County  Commissioners  in  each  county  (1668). 

Each  county  court  a  court  of  probate  (1685). 

Court  of  Chancery  (1685). 

The  colony  charter  became  vacated  in  1684,  and  in  1686 
Joseph  Dudley  assumed  the  office  of  President  by  royal  ap- 
pointment, with  a  deputy  president  and  fifteen  councillors. 
They  became  a  court  of  record  for  the  trial  of  civil  and  criminal 
matters,  with  authority  to  establish  courts  and  appoint  judges 
over  them.  They  set  up  a  Superior  Court  (a  majority  of  the 
councillors)  to  sit  three  times  a  year  at  Boston,  and  a  Court  of 
Pleas  and  Sessions  of  the  Peace  in  each  of  the  counties. 

The  next  year  saw  another  change  in  the  government,  with 
the  arrival  of  Sir  Edmund  Andros  with  a  commission  as  Gov- 
ernor, his  jurisdiction  to  include  all  New  England,  which 
brought  Plymouth  Colony  for  the  first  time  under  the  same  au- 
thority as  the  Massachusetts  Bay  Colony.  The  Governor  and 
thirty-nine  councillors  appointed  by  him  became  the  lawmakers. 
They  gave  jurisdiction  in  cases  concerning  lands,  not  involving 
a  sum  of  forty  shillings,  to  justices  of  the  peace;  established  a 
"Quarterly  Sessions  Court,"  held  by  the  several  justices  in 
their  respective  counties,  and  an  "Inferior  Court  of  Common 
Pleas,"  to  be  held  in  each  county  by  a  judge  assisted  by  two  or 
more  justices  of  the  county,  with  jurisdiction  in  Boston  limited 
to  twenty  pounds  and  the  court  ordered  to  sit  there  once  in  two 
months,  and  with  a  limitation  to  ten  pounds  in  other  counties 
where  the  court  would  sit  once  a  year. 

A  Superior  Court  of  Judicature  was  established,  evidently 
the  highest  court  of  appeal,  and  it  sat  in  each  county. 

Up  to  this  time  each  county  had  had  an  executive  officer  orig- 
inally called  the  beadle,  and  from  an  early  period  till  Governor 
Andros's  time,  the  marshal.  Governor  Andros  changed  the  name 
to  sheriff,  and  this  it  has  remained  to  the  present  day. 


310 

In  1699  to  the  duties  of  the  sheriff  as  executive  officer  of  the 
courts  were  added  the  duties  of  keeper  of  the  county  jail.  It 
was  provided  in  this  latter  act  that  the  salary  should  not  exceed 
thirty  pounds  in  Suffolk  and  ten  pounds  in  other  counties. 

In  1689,  when  the  news  of  the  revolution  in  England  reached 
New  England,  the  colony  went  back  to  its  old  form  of  govern- 
ment as  it  had  existed  in  1686. 

2.    Provincial  Period. 

In  1692  a  new  charter  granted  by  William  and  Mary  reached 
the  colony  for  the  "Province  of  Massachusetts  Bay  in  New 
England,"  comprising  Massachusetts,  Plymouth,  Maine  and 
Nova  Scotia.  This  charter  provided  for  a  Governor,  Lieuten- 
ant-Governor, and  a  Secretary,  all  appointed  by  the  King,  a 
board  of  twenty-eight  councillors  chosen  by  the  General  Court, 
and  a  House  of  Representatives  chosen  by  the  people.  This 
charter  gave  the  Governor  and  a  council  of  at  least  seven  coun- 
cillors or  assistants  the  authority  to  order  and  direct  the  affairs 
of  the  Province.  The  Governor,  with  the  advice  and  consent  of 
the  Council,  was  authorized  to  appoint,  among  others,  the 
judges,  sheriffs  and  justices  of  the  Courts  of  Justice.  The  char- 
ter recognized  the  greater  importance  of  Suffolk  County  by 
stipulating  that  the  sheriff  in  Suffolk  County  should  be  paid  not 
to  exceed  thirty  pounds,  and  not  to  exceed  ten  pounds  in  other 
counties.  This  charter  gave  the  Governor  and  Council  author- 
ity to  probate  wills. 

Following  the  arrival  of  this  charter  and  acting  under  it, 
various  acts  were  passed  by  the  General  Assembly  for  the 
establishment  of  courts,  which  administered  the  laws  until 
1699,  but  were  each  in  turn  disallowed  by  the  Privy  Council  at 
London  for  one  reason  or  another.  Finally,  however,  in  May, 
1699,  the  General  Assembly  did  pass  laws  establishing  courts 
which  stood  the  test  of  the  Privy  Council. 

The  first  of  these  acts  provided  for  a  Court  of  General 
Sessions  of  the  Peace,  held  by  the  justices  of  the  peace  in  each 
county,  with  jurisdiction  over  matters  relating  to  the  conserva- 
tion of  the  peace  and  the  punishment  of  offenders.  This  court 
held  jury  sessions. 

The  second  act  provided  for  the  establishment  of  an  Inferior 
Court  of  Common  Pleas  in  each  county,  held  by  four  persons 


311 

appointed  as  justices  of  the  court,  who  should  have  cognizance 
of  all  civil  actions  within  the  county  triable  at  common  law. 
This  also  had  jury  sessions. 

The  third  act  provided  for  a  Superior  Court  of  Judicature  for 
the  whole  province,  which  was  a  court  of  appeal  from  the  other 
two  mentioned  courts  and  was  to  be  held  at  specified  times  in 
each  county.  These  courts  continued  during  the  whole  of  the 
provincial  period  to  1781. 

When  the  history  of  the  province  reached  the  post-revolution 
period  and  the  Commonwealth  of  Massachusetts  was  estab- 
lished, these  distinctly  county  offices  are  shown  to  exist:  — 

Court  of  General  Sessions  of  the  Peace  (1699). 

Inferior  Court  of  Common  Pleas  (1699). 

Sheriff  (1687);  as  keeper  of  jails  in  each  count}'  (1699). 

Clerk  of  Court  (1639),  re-estabUshed  (1699). 

Register  of  Deeds  (1715). 

Judge  of  Probate  (1692). 

Register  of  Probate  (1692). 

County  Treasurer  (1654)  (1692). 

County  Commissioners  (1668). 

County  House  of  Correction  (1654);  sheriff  to  be  keeper  (1699). 

3.    The  Commonwealth  Period. 

The  new  "Commonwealth  of  Massachusetts"  in  178Cr 
adopted  a  constitution  which  continued  all  the  court  offices 
existent  in  the  final  days  of  the  province,  but  changed  the  name 
of  the  "Superior  Court  of  Judicature"  to  the  "Supreme  Judicial 
Com*t  of  the  Commonwealth  of  Massachusetts." 

In  1782,  by  act  of  the  General  Court,  the  "Inferior  Court  of 
Common  Pleas"  became  the  "Court  of  Common  Pleas,"  to  be 
kept  as  before  in  each  county  by  four  judges  appointed  from, 
within  the  county. 

By  an  act  of  1811,  it  was  enacted  that  the  Commonwealth, 
except  Nantucket  and  Dukes  County,  be  divided  into  six  cir- 
cuits, and  that  there  should  be  a  Circuit  Court  of  Common 
Pleas,  to  consist  of  a  chief  justice  and  two  associate  justices,  in 
each  circuit  to  sit  in  each  county  at  regular  periods.  This  court 
superseded  the  old  "Court  of  Common  Pleas." 

By  an  act  of  1813,  Suffolk  County  was  taken  out  of  this  cir- 
cuit and  was  given  a  court  of  its  own,  known  as  "The  Boston 
Com't  of  Common  Pleas." 


312 

By  chapter  79,  Acts  of  1820,  the  Legislature  estabhshed  the 
Court  of  Common  Pleas  as  a  court  of  the  Commonwealth  and 
not  limited  to  any  circuit  or  county,  to  supersede  the  Circuit 
Court  of  Common  Pleas  and  the  Boston  Court  of  Common 
Pleas.  This  was  abolished  in  1859,  when  the  present  Superior 
Court  was  established. 

INIeanwhile,  the  Court  of  General  Sessions  of  the  Peace, 
established  in  1699,  and  renewed  by  the  adoption  of  the  State 
Constitution,  saw  its  first  change  in  1807,  when  an  act  pro- 
vided that  it  should  be  held  in  each  county  by  one  chief  justice 
and  a  differing  number  of  associate  judges  in  each  county  as  a 
"General  Court  of  Sessions."  In  1809  its  jurisdiction  was 
transferred  to  the  "Court  of  Common  Pleas,"  but  this  act  was 
repealed  in  1811  and  the  "General  Court  of  Sessions"  revived, 
with  the  Governor  empowered  to  appoint  a  chief  justice  and 
not  more  than  four  or  less  than  two  associates  in  any  county. 

By  chapter  197,  Acts  of  1813,  the  act  of  revival  of  the  Gen- 
eral Court  of  Sessions  was  repealed  except  so  far  as  Suffolk, 
Nantucket  and  Dukes  County  were  concerned,  and  the  juris- 
diction of  the  court  was  transferred  to  the  Circuit  Court  of 
Common  Pleas.  By  this  act  the  Governor  was  authorized  to 
appoint  two  persons  in  each  county  to  be  session  justices,  and 
to  sit  with  the  Circuit  Court  of  Common  Pleas,  with  jurisdic- 
tion over  all  matters  formerly  under  the  Court  of  Sessions. 

By  chapter  120  of  the  Acts  of  1818,  there  was  another  change 
and  the  Court  of  Sessions  was  established  in  each  county  with  a 
chief  justice  and  two  associates.  This  act  repealed  the  act 
which  had  transferred  the  duties  of  such  a  court  as  the  Circuit 
Court  of  Common  Pleas. 

In  1821,  the  Court  of  Sessions  for  Suffolk  County  was  abol- 
ished, and  its  duties  with  regard  to  streets  and  ways  and  with 
regard  to  all  other  suits,  processes,  and  proceedings  in  which  a 
trial  by  jury  may  be  had  were  transferred  to  the  Court  of 
Common  Pleas,  and  certain  other  duties  were  transferred  to  the 
mayor  and  aldermen  in  Boston. 

The  reason  for  this  abolishing  of  the  Court  of  Sessions  in 
Suffolk  was  the  fact  that  much  earlier  it  had  been  found  that, 
owing  to  the  peculiar  situation  and  circumstances  of  the  Town 
of  Boston  as  a  metropolis  and  great  seaport  town,  the  usual 


313 

mode  of  enforcing  the  laws  and  administering  justice  in  criminal 
cases  was  attended  with  great  delays  and  bm-densome  expenses, 
and  special  courts  for  Suffolk  had  been  established. 

By  chapter  81,  Acts  of  1799,  the  ]\Iunicipal  Court  of  Boston 
had  been  constituted  to  have  cognizance  of  all  crimes  and 
ofi'ences  within  Boston,  previously  cognizable  in  the  Court  of 
General  Sessions  of  the  Peace  (all  crimes  in  the  county  of 
Suffolk,  except  capital).  One  judge  named  by  the  Governor 
presided  over  this  court  until  1843,  when  by  a  new  act  it  was 
provided  that  the  judges  of  the  Common  Pleas  Court  should 
be,  ex  officio,  the  judges  of  the  ^Municipal  Court. 

This  court  continued  until  April  5,  1859,  when  its  jurisdiction 
passed  to  the  present  "Superior  Court  of  the  Commonwealth." 

These  courts  (i.e.,  a  court  of  Common  Pleas  of  the  Common- 
wealth to  sit  at  stated  times  in  each  county,  and  a  Court  of 
Sessions  in  each  county,  except  Suffolk,  and  a  Municipal  Court 
for  Boston)  continued  thereafter  until  1855,  when  the  Legisla- 
ture added  a  "Superior  Court  of  the  County  of  Suffolk."  This 
was  to  supersede  in  Suffolk  the  "Court  of  Common  Pleas  of 
the  Commonwealth,"  and  the  city  of  Boston  was  required  to 
pay  the  expenses  of  this  court. 

In  1859,  however,  the  court  thus  established  in  Suffolk  was 
abolished,  as  was  also  the  "Municipal  Court,"  and  both  were 
superseded  by  the  present  Superior  Court  of  the  Commonwealth. 

The  present  day  Police  and  ^Municipal  Courts  are  descended 
from  the  courts  of  the  justices  of  the  peace,  consisting  of  the 
Governor,  Deputy  Governor,  and  four  other  citizens  named  by 
the  General  Court  in  1630  "for  the  reformation  of  abuses  and 
the  punishment  of  offenders." 

During  Colonial  days  the  magistrates,  who  were  the  members 
of  the  upper  house  of  the  Legislature,  were  the  justices  of  the 
peace,  and  in  towns  or  districts  where  there  was  no  magistrate, 
the  General  Court  appointed  justices.  By  the  authority  of  the 
charter  of  William  and  IMary  the  Governor  was  given  authority 
to  name  the  justices  of  the  peace,  and  courts  of  these  were 
established  by  statute  in  1697  and  were  the  lowest  courts  of  the 
provincial  period,  as  they  were  of  the  colonial  period.  These 
justices  were  scattered  throughout  the  province,  each  town 
usually  having  one  or  more. 


314 

After  the  establishment  of  the  Commonwealth,  the  Legisla- 
ture, for  similar  reasons  to  those  which  caused  the  creation  of  a 
IMunicipal  Court  for  Boston  in  1800,  established  the  first  police 
court  at  Boston  in  1822,  consisting  of  three  justices.  This  court 
was  authorized  to  hold  daily  sessions  and  to  have  cognizance 
over  matters  formerly  cognizable  by  justices  of  the  peace. 
A  division  of  this  court  to  sit  on  two  days  a  week,  styled  the 
"Justices  Court  for  the  county  of  Suffolk,"  was  established  at 
the  same  time  to  have  jurisdiction  over  civil  matters  formerly 
cognizable  by  a  justice  of  the  peace.  These  two  divisions  re- 
mained distinct  until  1860,  when  it  was  enacted  that  the  records 
and  jurisdiction  of  the  civil  branch  be  transferred  to  the  "Police 
Court."  Police  Courts  similar  to  the  Boston  Police  Court  were 
established  in  Salem,  1831;  Lowell  and  Newburyport,  1823; 
New  Bedford,  1834;  and  at  later  dates  in  various  other  cities, 
the  expenditures  of  each  being  borne  by  the  counties  in  which 
they  were  located. 

In  1868  the  present  Municipal  Court  of  the  City  of  Boston  was 
established.  The  other  municipal  courts  of  the  dift'erent  districts 
of  Boston  have  been  established  at  different  dates  since  1866, 
the  Municipal  Court  of  the  Charlestown  District  being  originally 
the  Police  Court  of  the  City  of  Charlestown,  established  in  1862. 

Since  the  revision  of  the  statutes  which  resulted  in  the 
"General  Statutes  of  1860,"  the  Municipal  Courts  of  Boston 
and  of  the  districts  of  Boston  have  developed.  The  first  act 
along  this  line  was  in  1866,  when  the  Legislature  established 
the  Municipal  Court  of  the  City  of  Boston  to  supersede  the 
old  Police  Court  of  Boston.  In  the  following  year  the  Legisla- 
ture established  in  the  southern  end  of  the  city  a  new  court 
known  as  the  Municipal  Court  of  the  Southern  District  (for- 
merly the  old  Police  Court  of  the  City  of  Roxbury),  which  in 
1874  became  the  "Municipal  Court  of  the  Highland  District." 
In  1870  the  Municipal  Court  of  the  Dorchester  District  was 
established.  !^ 

In  1873  the  Municipal  Court  of  the  Charlestown  District 
superseded  the  old  Police  Court  of  Charlestown. 

In  1874  the  Municipal  Courts  of  Boston,  East  Boston,  South 
Boston  and  West  Roxbury  districts  were  established.  The 
Municipal  Court  of  the  East  Boston  District  was  changed  after- 
wards in  name  to  the  East  Boston  District  Court,  in  1886. 


315 

These  courts  are  now  and  always  have  been  wholly  independent 
of  each  other,  each  with  its  complete  and  fully  equipped  organi- 
zation, with  local  justices  exercising  their  functions  without 
consultation  or  conference  and  without  any  central  supervision. 
Besides  these,  or  outside  the  city  of  Boston,  there  has  been 
only  one  court  given  the  title  of  "municipal  court,"  viz.,  the 
police  court  of  Brookline,  which  name  was  later  changed  to  the 
"^Municipal  Court  of  the  Town  of  Brookline." 

As  far  back  as  the  establishment  of  the  Salem  police  court  in 
1831,  there  have  been  courts  in  other  counties  similar  in  juris- 
diction to  the  Police  Court  (Municipal  Court)  of  Boston.  They 
became  established  as  the  need  for  them  appeared,  and  the  first 
dozen  established  were  called  Police  Courts,  while  the  remainder 
became  District  Courts  of  the  different  counties.  In  all  cases 
the  expenditures  were  paid  by  the  counties,  towns  and  cities  in 
each  county  bearing  an  apportioned  share. 

In  the  case  of  the  cities  of  Chelsea  and  Revere  and  the  town 
of  Winthrop  in  Suffolk  County,  however,  they  were  freed  from 
all  county  of  Suffolk  expenses  by  an  act  of  1831  (chapter  65), 
which  provided  that  the  City  of  Boston  should  thereafter  pay 
the  bills  of  Suffolk  County  in  return  for  a  relinquishment  by 
Chelsea  (which  then  included  the  territory  of  Revere  and 
Winthrop)  of  all  its  title  to  county  institutions.  Attempts  were 
made  in  1911-1915  to  have  these  communities  bear  some  of  the 
expenses  of  Suffolk  County,  but  without  result. 

III.    COUNTY  GOVERNMENT  IN  THE  VARIOUS    COUNTIES 
OF  THE  COMMONWEALTH. 

1 .    Political. 

Voting  Districts  for  Representation  in  the  General  Court. 

There  are  at  the  present  time  in  INIassachusetts  fourteen 
counties,  as  follows:  Suffolk,  Essex,  jNIiddlesex,  Hampshire, 
Plymouth,  Bristol,  Dukes,  Barnstable,  Nantucket,  Worcester, 
Berkshire,  Franklin,  Hampden  and  Norfolk,  the  oldest  counties 
being  Suffolk,  Essex  and  Middlesex,  which  were  incorporated  in 
1643.  The  other  counties  were  incorporated  in  the  period  from 
1662  to  1812. 

The  Constitution  of  ^Massachusetts,  adopted  in  1780,  left  the 
form  of  county  administration  as  it  then  existed,  but  made  the 


316 

several  counties  of  the  Commonwealth  the  basis  of  the  districts 
for  the  choice  of  Councillors  and  Senators  (See  Constitution  of 
Massachusetts,  Chapter  1,  Section  2,  Article  I.)  and  fixed  the 
total  number  of  such  officers  at  forty,  which  should  be  distrib- 
uted among  the  several  counties  according  to  population. 
Thus  in  Suffolk  and  Essex  it  was  provided  that  there  should  be 
six  Councillors  and  Senators;  -Middlesex,  five;  Plymouth,  three; 
Barnstable,  one;  Bristol,  three;  etc.,  and  it  also  provided  that 
the  General  Court  should  have  power  to  alter  the  said  districts. 
The  total  number  of  Councillors  and  Senators  (forty)  has  re- 
mained the  same  up  to  the  present  time,  although  the  allotment 
to  the  several  counties  of  the  State  has  been  altered.  Thus  at 
the  present  time  Suffolk  has  nine  members  in  the  Senate, 
Middlesex  has  eight,  Plymouth  has  been  reduced  to  two,  Essex 
reduced  to  five,  and  Worcester  to  four. 

The  county  is  also  maintained  as  the  unit  for  the  election  of 
members  to  the  House  of  Representatives,  the  general  law 
directing  that  the  House  shall  consist  of  two  hundred  and  forty 
members  who  shall  be  apportioned  by  the  Legislature  after 
each  decennial  census,  according  to  the  number  of  legal  votes 
in  each  county.  In  counties  other  than  Suffolk,  after  the  Legis- 
lature has  so  designated  the  number  of  Representatives  in  the 
General  Court,  the  county  commissioners  meet  on  the  first 
Tuesday  in  August  at  the  "shire"  town  and  proceed  to  divide 
the  counties  into  representative  districts  of  contiguous  territory. 
In  the  county  of  Suffolk,  however,  there  is  a  special  board  of 
commissioners  to  perform  this  duty. 

By  chapter  560  of  the  Acts  of  1907,  it  was  provided  that  at 
the  annual  State  election  in  the  year  1915  and  in  every  tenth 
year  thereafter,  nine  commissioners  shall  be  elected  for  the 
county  of  Suffolk  whose  duties  it  would  be  to  apportion  the 
county  of  Suffolk  into  representative  districts  of  contiguous 
territory  as  nearly  equal  in  population  as  possible. 

2.    Elective  and  Appointive  Officers. 
For  the  purpose  of  administering  the  government  of  the  counties 
there  are  a  number  of  officers,  some  of  whom  are  elected  by  the 
voters  in  their  respective  counties  and  some  of  whom  are  appointed 
by  the  Governor.     The  elective  oflScers  are  as  follows:  — 


317 

(1)  County  commissioners  and  associate  commissioners. 

(2)  Clerks  of  the  Superior  Court  (and  in  Suffolk  County  the  clerk  of  the 

Supreme  Judicial  Court  for  Suffolk  County). 

(3)  Sheriffs. 

(4)  County  Treasurers. 

(5)  District  Attornej^s. 

(6)  Registers  of  Deeds. 

(7)  Registers  of  Probate  and  Insolvenc}-. 

The  appointive  officers  (in  all  cases  by  the  Governor,  gener- 
ally with  the  consent  of  the  Executive  Council)  are :  — • 

(1)  Justices  of  the  municipal  and  district  courts  in  the  various  cities  of 

the  count^^ 

(2)  Clerks  of  these  said  district  and  municipal  courts. 

(3)  INIedical  and  Assistant  ]\Iedical  Examiners. 

(4)  Controller  of  County  Accounts. 

This  organization  is  common,  with  slight  variations,  to  all  the 
counties  of  the  State,  and  in  order  to  have  a  comprehensive 
idea  of  the  functions  and  duties  of  these  officers  they  will  be 
described  in  detail. 

Elective  Officers. 

(a)     County  Commissioners. 

The  county  in  Massachusetts  is  a  legal  corporation  for 
limited  purposes.  It  is  a  "body  politic  and  corporate,"  which 
can  sue  and  be  sued,  may  purchase  and  hold  for  the  use  of  the 
county  personal  estate  and  land  lying  within  its  limits,  and 
may  make  necessary  contracts. 

The  chief  administrative  officers  to  perform  these  duties  are 
the  county  commissioners. 

County  commissioners  were  appointed,  two  to  each  county,  as 
early  as  1668.  Their  duties  originally  were  to  list  the  taxpayers 
and  assess  the  taxes.  The  importance  of  the  offices  grew  until, 
following  the  adoption  of  the  Constitution  of  the  "Common- 
wealth of  Massachusetts,"  their  duties  included:  — 

1.  The  making  of  estimates  of  the  sums  necessary  to  defray  the  county 

charges  (1781). 

2.  The  apportionment  of  the  county  taxes  (1781). 

3.  The  erection  and  repairing  of  court  houses,  jails  and  other  necessary 

public  buildings  (1784). 

4.  The  examination  of  the  receipts  and  expenditures  of  the  moneys  of 

the  county  (1785). 


318 

5.  The   laj'ing  out,   discontinuance    and    altering   of    highwaj's    (1786) 

(1827). 

6.  The  making  of  estimates  of  the  county  charges  and  sending  them  to 

the  Secretary  of  State  (1811)  (1834). 

7.  The  examination  and  allowance  of  county  treasurer's  annual  accounts 

(1811)  (1834). 

8.  The  pubUshing  of  the  annual  statement  of  the  county  expenses. 

The  county  commissioners  were  appointed  by  the  Governor 
until  1835,  when  an  act  was  passed  providing  for  the  election  of 
three  in  each  county,  except  Nantucket  and  Suffolk.  In  1821 
it  was  enacted  that  the  mayor  and  aldermen  of  Boston  within  the 
county  of  Suffolk  should  exercise  like  powers  and  perform  like 
duties  as  the  county  commissioners  in  other  counties. 

With  the  exception  of  the  counties  of  Suffolk  and  Nantucket, 
each  county  in  the  Commonwealth  still  has  three  county  com- 
missioners elected  by  the  voters  of  the  county,  one  member 
being  elected  each  year,  and  the  board  organizing  on  the  first 
Wednesday  in  January.  The  salaries  paid  to  these  commis- 
sioners are  fixed  by  statute,  and  range  from  $400  in  the  county 
of  Dukes  to  $2,000  in  Essex  and  Middlesex.  This  represents 
the  entire  compensation  of  the  commissioners.  By  chapter  451 
of  the  Acts  of  1904  the  counties  of  the  Commonwealth,  for  the 
purpose  of  establishing  the  salaries  of  the  county  commissioners, 
clerks  of  the  courts  and  county  treasurers,  were  divided  into 
nine  classes,  the  basis  for  the  classification  being  population. 

The  commissioners  are  directed  by  law  to  hold  meetings  in 
their  respective  counties  at  certain  times  and  in  certain  places. 

The  duties  of  the  county  commissioners  at  the  present  time 
are  to  provide  for  erecting  and  repairing  court  houses,  jails  and 
other  necessary  buildings  within  and  for  the  use  of  their  county, 
to  represent  the  county  and  to  have  the  care  of  its  property  and 
the  management  of  its  business  and  affairs  in  all  cases  not  other- 
wise expressly  provided  for;  and  to  establish  a  seal  of  their 
county,  to  be  placed  in  the  control  of  their  clerk,  and  to  be 
affixed  to  all  processes  issued  by  them  in  cases  in  which  a  seal 
is  required. 

They  are  also  charged  with  the  laying  out  and  the  discon- 
tinuance of  ways,  which  is  one  of  the  most  important  of  their 
duties.  Ways  include  not  only  highways  but  also  bridges  and 
roads.    The  jurisdiction  of  the  county  commissioners  over  such 


319 

work  is  not  limited  to  county  ways  alone,  but  in  cases  of 
necessity  the  county  commissioners  are  given  power  to  order 
specijBc  repairs  to  ways  in  towns,  the  expense  of  which  may  be 
apportioned  between  county  and  town  as  in  the  case  of  high- 
ways. 

Petitions  for  a  new  highway  or  for  the  alteration  or  discon- 
tinuance of  an  existing  highway  presented  to  the  county  com- 
missioners must  be  accompanied  by  a  recognizance  with  a 
surety  to  cover  the  expense  of  the  petition  in  case  the  peti- 
tioners do  not  prevail.  If  the  petition  is  not  objected  to  and 
the  town  within  which  such  improvement  is  prayed  for  has 
been  duly  notified,  the  county  commissioners  still  have  dis- 
cretionary power  to  inaugurate  the  improvement.  The  law 
states  that  the  Commissioners  may  "within  six  months  there- 
after [the  date  of  the  hearing]  lay  out  or  alter  the  same  without 
further  notice."  On  a  petition  for  discontinuance  of  a  highway 
two  steps  on  the  part  of  the  county  commissioners  are  necessary : 

(1)  View  of  the  road  and  an  adjudication  either  at  that  time 
or  later  that  the  road  should  be  discontinued  and  an  assess- 
ment of  damages. 

(2)  Return  of  these  proceedings  and  adjudication  at  the  next 
regular  meeting  of  the  board. 

Taxpayers  who  are  aggrieved  by  the  refusal  of  the  local 
assessors  to  abate  a  tax  may  appeal  to  the  county  commis- 
sioners by  filing  an  appeal  with  their  clerk  within  thirty  days 
after  receiving  notice  of  the  refusal  of  the  assessors.  County 
commissioners,  after  hearings  on  this  matter,  have  power  to 
make  a  reasonable  abatement  if  the  property  has  been  over- 
rated. 

The  State  Tax  Commissioner  may  also  use  the  county  com- 
missioners as  a  tax  appellate  body  by  requiring  a  corporation 
to  appeal  to  it  from  the  valuation  placed  by  the  local  assessors 
upon  its  works  and  property.  If  such  an  appellate  order  is 
issued  by  the  Tax  Commissioner  the  decision  of  the  county 
commissioners  on  the  question  of  value  is  conclusive. 

Upon  the  neglect  or  refusal  of  local  boards  of  health  to  abate 
a  nuisance,  persons  aggrieved  may  appeal  to  the  county  com- 
missioners, who  in  such  cases  may  exercise  all  the  powers  of 
the  board  of  health,  if  it  is  found  to  be  necessary. 


320 

County  taxes  are  levied  by  the  county  commissioners  after  the 
expenses  for  the  year  have  been  estimated  by  the  General  Court. 

In  the  county  of  Suffolk  the  aldermen  of  the  city  of  Boston 
(now  the  City  Council)  still  have  the  powers  of  county  commis- 
sioners, and  in  the  county  of  Nantucket  these  powers  are  re- 
posed in  the  selectmen  of  the  town  of  Nantucket. 

As  compared  with  the  powers  of  county  commissioners  in  the 
Middle  and  Southern  States,  those  of  the  county  commissioners 
in  Massachusetts  and  in  other  New  England  States  are  more 
limited.  In  Vermont  two  assistant  county  judges  act  as  county 
commissioners,  and  their  duties  are  confined  to  judicial  adminis- 
tration and  to  financial  accounts  in  connection  therewith.  In 
Connecticut,  Maine  and  New  Hampshire  the  county  commis- 
sioners consist  of  three  members,  but  their  powers  are  different. 
In  Connecticut  (term  four  years),  besides  the  care  of  county 
buildings,  jails  and  homes  for  dependent  children,  they  have 
control  of  liquor  licenses  and  repairs  on  highways.  In  New 
Hampshire  (term  two  years)  they  have  the  care  and  custody  of 
county  property  and  buildings  of  county  paupers,  supervision 
over  the  superintendent  and  other  officers  of  the  county  farm, 
jail  and  houses  of  correction;  they  purchase  and  sell  real  estate  of 
the  county,  audit  claims  against  or  for  the  county,  issue  county 
bonds  and  supervise  county  records.  In  Maine  (where  they  are 
elected  biennially  for  six  years)  they  make  up  the  estimates  and 
cause  taxes  to  be  assessed  in  towns  for  county  purposes,  have 
charge  of  the  fiscal  accounts  and  legal  matters,  and  have  care 
of  the  highways  and  jails  and  the  general  executive  business  of 
the  county. 

In  case  a  vacancy  occurs  in  the  office  of  county  commissioner 
in  Massachusetts,  the  remaining  commissioners  and  the  clerk  of 
courts  may  appoint  a  temporary  commissioner  until  a  new  one 
is  elected.  In  New  Hampshire  the  Supreme  Court  appoints. 
In  Vermont  and  Connecticut  the  Governor  alone  has  the  power. 
In  Maine  the  Governor,  with  the  advice  and  consent  of  the 
Council,  appoints  a  temporary  commissioner.  Official  mis- 
conduct (Maine,  New  Hampshire  or  Massachusetts)  or  failure 
to  file  a  new  bond  when  so  requested  by  the  State  Treasurer 
(Connecticut)  are  generally  grounds  for  removal  of  a  county 
commissioner. 


321 

In  all  the  New  England  States  except  Massachusetts,  county 
commissioners  are  required  to  give  bonds,  which  are  approved 
by  the  higher  court  or  by  the  State  Treasurer. 

(6)     Clerks  of  Courts. 

The  General  Court  originally  appointed  clerks  of  courts,  but 
in  1639  authorized  the  justices  of  each  court  to  appoint  clerks  of 
courts  or  county  clerks  to  serve  the  four  courts  which  had  been 
established  in  1635.  During  the  colonial  period  their  duties 
were  constantly  added  to.  After  the  arrival  of  the  charter  of 
William  and  Mary,  however,  the  General  Court  authorized  the 
justices  of  each  of  the  Superior  Courts  of  Judicature,  the  Inferior 
Courts  of  Common  Pleas,  and  the  General  Sessions  of  the  Peace 
to  appoint  each  its  own  clerk  in  each  county.  This  method  of 
appointment  continued  during  the  provincial  period. 

Under  the  State  government,  by  chapter  8  of  the  Acts  of 
1811,  the  Governor  was  authorized  to  appoint  a  clerk  for  all 
courts  in  each  county.  By  chapter  77  of  the  Acts  of  1813,  the 
right  to  appoint  such  clerks  was  taken  from  the  Governor  and 
given  to  the  Supreme  Judicial  Court. 

By  chapter  129,  Acts  of  1830,  in  section  1,  the  justices  of  the 
Supreme  Judicial  Court  were  authorized  to  appoint  "one  or 
more"  clerks  of  courts  in  each  county  for  terms  of  five  years, 
and  in  section  4  the  salary  of  the  clerks  was  fixed. 

Under  authority  of  this  last -mentioned  act,  the  justices  of  the 
Supreme  Judicial  Court  made  appointments  in  Suffolk  County 
to  the  offices  of  clerk  of  the  Supreme  Judicial  Court  and  of 
each  of  the  courts  corresponding  to  the  Superior  Civil  and 
Superior  Criminal  Courts  as  they  now  exist.  In  all  other 
counties  only  one  clerk  of  courts  was  provided.  By  an  amend- 
ment to  the  Constitution  accepted  in  1855,  clerks  of  courts  in 
each  .county  became  elective  officers;  and  chapter  173,  Acts  of 
1856,  provided  for  the  election  of  a  clerk  of  courts  in  each 
county  except  Suffolk,  and  in  Suffolk  for  the  election  of  a 
clerk  of  the  Supreme  Judicial  Court,  a  clerk  of  the  Superior 
Court,  and  a  clerk  of  the  Municipal  Court  of  said  county  every 
five  years.  In  1857  it  was  provided  that  the  clerk  of  courts  in 
each  county  should  be  clerk  to  the  county  commissioners. 

By  an  act  of  1859,  however,  the  office  of  clerk  of  the  Supreme 
Court  for  the  Commonwealth  became  a  separate  office,   ap- 


322 

pointment  to  which  was  by  the  justices.  Also  by  an  act  of 
1859,  as  before  stated,  the  court  system  was  again  revised,  with 
the  result  that  since  then  there  have  been  a  Supreme  Judicial 
Court  and  a  Supreme  Court  of  the  Commonwealth  sitting 
in  each  county  separately.  This  latter  act  provided  that  there 
should  be  an  election  of  two  clerks  in  Suffolk  County,  one  for 
the  civil  and  one  for  the  criminal  business  of  the  county,  and  of 
only  one  clerk  in  every  other  county,  who  should  also  be  clerk  of 
the  Supreme  Judicial  Court  for  those  counties.  In  1877  (chapter 
210,  section  1)  the  Governor  was  authorized  to  appoint  clerks 
for  police,  district  or  municipal  courts  for  a  term  of  five  years, 
and  this  method  is  at  present  in  vogue. 

County  clerks  of  courts  are  elected  at  the  annual  State  elec- 
tion to  serve  for  a  term  of  five  years  in  all  counties  of  the  State, 
the  clerk  so  elected  acting  as  clerk  of  the  courts,  viz..  Supreme 
Judicial  Court,  Superior  Court  and  the  County  Commissioners. 
In  the  county  of  Suffolk  there  are  still  three  clerks  of  courts, 
viz.,  clerk  of  the  Supreme  Judicial  Coiu't  of  Suffolk  County, 
clerk  of  the  Superior  Court,  Civil  Session,  and  clerk  of  the 
Superior  Court,  Criminal  Session. 

In  case  of  a  vacancy  in  the  office  of  the  clerk  of  the  court  in 
any  county  or  the  clerk  of  the  Supreme  Judicial  Court  in  the 
county  of  Suffolk,  the  justices  of  the  Supreme  Court  appoint  a 
person  to  hold  office  until  a  new  clerk  is  appointed  and  quali- 
fied. 

Salaries  of  the  clerks  of  court  are  graded  according  to  the 
population  of  the  county  where  they  serve,  the  Commonwealth 
for  the  purpose  of  their  compensation  being  divided  into  nine 
classes,  class  (a)  being  the  lowest  paid,  and  class  (i)  the  highest. 
Salaries  paid  clerks  of  court  range  from  $600,  in  the  case  of 
Nantucket  and  Dukes  counties,  to  $6,000,  in  Suffolk  and  Middle- 
sex counties,  with  the  exception  of  the  clerk  of  the  Supreme 
Judicial  Court  of  Suffolk  County,  who  receives  $6,500  a  year, 
$5,000  paid  by  the  county  of  Suffolk  and  $1,500  by  the 
Commonwealth. 

The  annual  salaries  paid  to  the  clerks  are  full  compensation 
for  all  services  rendered  bj'  them,  either  in  the  civil  or  the  crimi- 
nal court,  to  the  county  commissioners,  or  in  the  form  of  any 
official    act,    except    for    such    clerical    assistance    as    may    be 


323 

allowed  them.  In  all  counties  except  Suffolk  and  Nantucket 
the  clerk  of  the  Superior  Court  acts  as  a  member  of  the  board 
of  examiners  of  election  returns,  for  which  he  receives  a  salary 
of  $5  a  day  for  every  day  so  employed  and  10  cents  a  mile  for 
traveling.  This  board  meets  on  the  first  Wednesday  in  the 
month  following  the  election  of  the  county  commissioners,  or 
associate  commissioners,  determines  what  persons  are  elected, 
issues  certificates  of  election  to  them  and  gives  notice  to  the 
Secretary  of  the  Commonwealth.  The  clerk  of  the  court,  more- 
over, has  the  custody  of  the  county  seal  and  of  the  court 
records,  for  which  he  is  responsible.  The  Controller  of  County 
Accounts  has  jurisdiction  over  the  clerk's  financial  records  and 
must  examine  them  at  certain  stated  intervals.  The  county 
treasurer  is  ineligible  to  the  office  of  clerk  of  court. 

Assistant  clerks  of  the  Superior  Civil  Court  and  the  Supreme 
Court  for  the  county  of  Suffolk  are  appointed  by  the  justices 
of  the  Superior  Civil  Court  and  the  Supreme  Court  respectively. 
They  are  sworn  officers  and  act  as  deputies  for  the  clerk  of  the 
court  in  attendance  at  various  sessions  of  the  court,  and  receive 
salaries  ranging  from  S3,500  for  the  county  of  Suffolk  to  $2,000 
for  the  assistant  clerk  of  the  county  of  Hampden.  Assistant 
clerks  of  municipal,  district  or  police  courts  are  appointed  by 
the  clerk  of  the  court  subject  to  the  approval  of  the  justices  of 
that  court. 

Clerks  of  courts  are  appointed  by  the  judges  of  the  court 
which  they  serve  in  New  Hampshire,  Vermont,  Rhode  Island 
and  Connecticut;  their  appointment  in  New  Hampshire  is  for 
an  unlimited  period,  in  Vermont  for  two  years,  in  Rhode 
Island  for  three  years,  and  in  Connecticut  for  one  year.  In 
Maine  they  are  elected  for  four  years. 

Shorthand  reporters,  who  take  the  testimony  of  witnesses, 
and  probation  officers  in  all  courts  are  appointed  by  the  court. 
Clerical  assistants  (clerks,  stenographers,  copyists  and  typists) 
are  generally  appointed  by  the  clerk  of  the  court. 

(c)     Sheriffs. 
A  sheriff  is  elected  by  the  voters  of  each  county  at  the  State 
election,  for  a  term  of  office  of  five  years.    Before  he  can  per- 
form any  official  act  he  is  required  to  take  an  oath  to  perform 


324 

the  duties  of  his  office  in  an  honest  and  efficient  manner  and  to 
be  responsible  for  the  acts  of  his  deputies,  and  he  must  give  a 
bond  therefor  with  such  sureties  as  the  Superior  Court  orders 
and  approves.  He  has  the  power  to  appoint  deputies,  who 
shall  be  sworn,  and  is  directed  to  appoint,  within  his  county,  a 
special  sheriff.  The  special  sheriff  has  the  authority  of  a 
deputy  sheriff;  and  when  the  sheriff  is  absent  or  unable  to  per- 
form those  duties  which  cannot  be  performed  by  any  of  his 
deputies,  they  are  performed  by  the  special  sheriff.  In  the  case 
of  a  vacancy  in  the  office  of  sheriff,  the  Governor,  with  the 
advice  and  consent  of  the  Council,  may  appoint  some  person 
until  a  sheriff  is  elected  and  qualified. 

The  sheriff  has  duties  in  connection  with  both  the  civil  and 
criminal  sides  of  the  court.  His  duties  on  the  civil  side  consist 
mainly  in  serving  writs  in  actions  in  court,  either  by  himself  or 
through  his  deputies,  and  in  acting  as  a  member  of  the  board  of 
examiners.  In  certain  cases  this  board  of  examiners  has  juris- 
diction over  the  election  returns  for  county  commissioners  or 
associate  commissioners. 

His  duties  on  the  criminal  side  consist  of  the  custody  of  the 
county  jail  and  of  the  inhabitants  therein,  and  of  attendance 
upon  the  court,  and  in  assisting  the  district  attorney  of  the 
county  in  his  enforcement  of  justice. 

Annual  salaries  are  provided  for  sheriffs  according  to  statute 
law,  ranging  from  $300  in  Barnstable  and  Dukes  to  S3,000  in 
Suffolk,  Middlesex  and  Essex,  and  they  may  also  retain  for 
their  own  use  the  fees  received  by  them  for  the  service  of 
process.  In  addition  the  sheriffs  of  the  counties  of  Plymouth, 
Essex,  Worcester  and  Norfolk  are  allowed  necessary  travelling 
expenses,  the  amounts  varying  in  each  county.  If  the  sheriff 
also  acts  as  jailer  or  master  of  the  house  of  correction,  he  may 
receive  additional  compensation  of  not  more  than  $1,000  a 
year. 

All  other  fees  received  by  the  sheriff,  however,  or  by  his 
deputies,  exclusive  of  the  fees  received  by  them  for  the  service 
of  process,  are  to  be  turned  over  to  the  county  treasurer  and 
an  account  made  under  oath  of  the  money  so  received. 

The  sheriff  may  appoint  deputy  sheriffs,  who  are  responsible 
to  him,  who  receive  no  salaries  from  the  Commonwealth  or  the 
county,  but  are  paid  from  the  fees  received  for  the  service  of 


325 

civil  processes.  The  sheriff  also  has  power  to  appoint,  subject 
to  the  approval  of  the  justices  of  the  Superior  Court,  officers  for 
attendance  upon  the  several  sessions  of  the  court.  In  the 
county  of  Suffolk  not  more  than  four  officers  may  be  appointed 
for  each  session  for  civil  business  with  a  jury,  three  for  a  session 
without  a  jury,  and  six  for  the  session  for  criminal  business. 

In  the  Probate  Court  of  Suffolk  County  the  court  officers  are 
appointed  by  the  judges  of  that  court.  In  the  county  of  Middle- 
sex the  court  officers  are  appointed  by  the  sheriff  and  assigned 
by  him  to  the  various  civil,  criminal  and  probate  sessions  of  the 
Supreme,  Superior  and  Probate  Courts.  Messengers  for  the  Su- 
preme, Superior  and  Probate  Courts  are  also  provided  for  by 
special  statute.  The  compensation  of  all  these  court  officers  and 
messengers  ranges  from  SI, 300  to  ^2,000  a  year. 

With  the  exception  of  Rhode  Island,  sheriffs  of  all  the  New 
England  States  are  elected,  the  terms  ranging  from  two  years 
in  Maine,  New  Hampshire  and  Vermont,  to  four  years  in  Mas- 
sachusetts and  Connecticut.  In  Rhode  Island  the  sheriff  is 
appointed  by  the  Legislature  for  a  term  of  five  years.  In  all 
these  States  the  sheriff  has  the  power  to  appoint  one  or  more 
deputies  who  are  responsible  to  him. 

Bonds  are  required  in  all  cases,  but  the  approving  powers 
differ.  In  New  Hampshire,  Vermont  and  Rhode  Island  the 
court  approves  the  bond;  in  Maine  the  county  commissioners 
and  in  Connecticut  the  Governor.  The  amount  of  the  bond, 
moreover,  varies  from  $25,000  to  $40,000  in  jMaine,  $30,000  in 
New  Hampshire,  and  in  other  States  of  the  New  England  sec- 
tion the  amount  of  the  bond  is  less.  Sheriffs  may  be  removed 
in  Massachusetts,  New  Hampshire,  Rhode  Island  and  Connecti- 
cut by  the  Supreme  or  Superior  Courts. 

(d)     County  Treasvrers. 

The  office  of  county  treasurer  was  originally  established  by 
the  General  Court  of  the  Massachusetts  Bay  Colony  in  1654, 
when  each  county  was  authorized  to  elect  a  treasurer.  Follow- 
ing the  charter  of  William  and  Mary,  the  General  Court  in 
1692  again  voted  that  the  counties  as  then  existent  should  be 
continued  and  each  should  elect  a  county  treasurer. 

With  the  exception  of  Suffolk  and  Nantucket,  all  of  the 
counties  in  the  State  are  now  required  to  elect  every  three  years 


326 

a  county  treasurer.  He  raust  be  a  resident  of  the  county  which 
he  serves  and  must  take  an  oath  before  the  county  commis- 
sioners faithfully  to  perform  the  duties  of  his  office,  and  for 
wilful  violation  of  duties  imposed  upon  him  he  shall  forfeit  not 
less  than  $50  nor  more  than  $1,000,  to  be  recovered  in  an  action 
brought  by  the  Attorney-General  for  the  use  of  the  county.  In 
the  counties  of  Suffolk  and  Nantucket,  the  city  treasurer  of 
Boston  and  the  town  treasurer  of  Nantucket  respectively  act 
as  county  treasurers  of  their  counties,  and  no  person  holding  the 
office  of  Attorney-General,  district  attorney,  judge  of  the  Supe- 
rior Court,  clerk  of  the  court  or  sheriff  can  be  county  treasurer. 

In  case  of  vacancy  in  the  office  a  temporary  treasurer  may 
be  appointed  by  the  county  commissioners  until  the  election  of 
a  new  treasurer,  except  in  the  counties  of  Suffolk  and  Nan- 
tucket, where  the  general  law  regarding  the  appointment  of  city 
treasurer  and  town  treasurer  governs. 

The  county  treasurer  is  provided  with  an  office  in  the  county 
building.  The  duties  of  county  treasurers  are  to  keep  an  ac- 
count of  all  the  financial  transactions  of  the  county,  receive 
bonds  from  the  clerks  of  the  courts,  medical  examiners,  registers 
of  deeds,  trial  justices  and  justices  of  the  district  and  police 
courts;  to  deposit  all  cash  of  the  counties  in  the  national  banks, 
and  to  pay  out  the  money  in  their  possession  for  the  support  of 
the  county  departments.  The  treasurer  has  also  the  duty  of 
receiving  fees,  fines  and  forfeitures,  receipts  from  prison  indus- 
tries, and  money  paid  into  court,  as  well  as  the  sheriffs'  fees  and 
taxes  levied  by  the  county  commissioners  on  cities  and  towns. 
He  also  has  the  duty  of  notifying  the  district  attorney  of  de- 
fault in  the  payment  over  to  him  of  money  paid  to  the  clerks  of 
courts. 

For  the  purpose  of  compensating  the  county  treasurers,  the 
counties  are  divided  into  nine  classes,  compensation  being  based 
upon  the  population  in  each  county.  In  the  counties  having 
less  than  15,000  people  (Nantucket  and  Dukes),  the  county 
treasurer  receives  $300;  in  counties  having  a  population  of 
500,000  or  more,  as  in  Middlesex,  the  treasurer  receives  $3,500. 
The  treasurers  of  Bristol,  iMiddlesex  and  Worcester  are  allowed 
their  actual  and  proper  travelling  expenses  in  addition  to  their 
salaries. 


327 

The  county  treasurers  are  allowed  to  employ  clerical  assist- 
ants for  the  proper  conduct  of  all  their  business.  The  amount 
to  be  spent  for  this  purpose  is  limited  by  legislative  acts,  and 
the  treasurer  cannot  spend  an  amount  greater  than  that  allowed 
until  a  further  authorization  is  given. 

County  treasurers  are  found  in  all  the  States  of  New  England 
except  Rhode  Island.  They  are  elected  in  Maine  and  New 
Hampshire,  but  are  appointed  in  Connecticut  by  the  board  of 
commissioners  and  in  Vermont  by  the  two  commissioner  judges. 
The  term  of  office  in  these  four  States  is  two  years. 

Bonds  approved  by  the  county  commissioners  are  required  in 
all  these  States. 

(e)     District  Attorneys. 

The  office  of  county  attorney  was  established  in  1807  for 
Suffolk  County,  the  manner  of  filling  the  position  being  by 
appointment  by  the  Governor.  In  1832  the  State  was  divided 
into  districts  and  to  each  a  district  attorney  was  assigned.  For 
Suffolk  County  (which  comprised  a  separate  district)  an  "attor- 
ney for  the  Commonwealth"  was  authorized  to  be  appointed 
by  the  Governor,  In  1855  a  law  was  passed  making  these 
officers  elective  by  the  people  in  each  district  every  three  years, 
and  in  1860  the  title  of  the  office  in  all  districts  was  made 
"district  attorney."  This  arrangement  still  continues.  The 
districts  are  eight  in  number.  The  larger  counties,  like  Sufi^olk, 
Middlesex  and  Essex,  form  complete  and  independent  districts, 
while  counties  like  Norfolk  and  Plymouth,  or  Berkshire  and 
Hampden,  are  combined  into  one  district. 

The  district  attorney  is  required  to  be  a  resident  of  the 
district  for  which  he  is  elected,  and  upon  a  vacancy  in  the  office 
an  appointment  is  made  thereto  by  the  Governor,  until  a  new 
district  attorney  is  elected  and  qualified.  A  district  attorney 
may  be  removed  by  a  majority  of  the  justices  of  the  Supreme 
Judicial  Court  if  sufficient  cause  is  shown  therefor  and  it  ap- 
pears that  the  public  good  so  requires.  A  bond  to  the  extent  of 
$5,000  with  two  sureties,  approved  by  the  Superior  Court,  is 
required. 

District  attorneys  have  two  distinct  functions,  civil  and 
criminal,  although  it  is  the  latter  function  that  is  the  most 
important  for  their  office.    Their  civil  duties  consist  in  authoriz- 


328 

ing,  in  writing,  a  medical  examiner  to  make  an  autopsy  on  the 
body  of  a  person  supposed  to  have  come  to  his  death  by 
violence.  The  district  attorney  is  also  empowered  to  attend  the 
inquest  proceedings  and  examine  the  witnesses  where  death  has 
resulted  by  accident  on  a  road  or  street  railway,  or  he  may 
direct  that  an  inquest  be  held  in  the  case  of  death  by  any 
casualty.  The  district  attorney  in  proceedings,  in  the  name  of 
the  Commonwealth,  for  the  recovery  of  fines,  forfeitures  or 
penalties  where  they  do  not  inure  to  the  benefit  of  the  Com- 
monwealth may  move  that  the  case  be  conducted  under  his 
direction;  and  in  case  a  public  officer  who  is  required  by  law  to 
count  and  pay  over  money  to  the  county  treasurer  fails  so  to  do 
for  ten  days  after  the  time  prescribed  by  law  therefor,  the  dis- 
trict attorney,  upon  notice  from  the  treasurer,  shall  proceed 
forthwith  to  recover  the  amount  due.  He  is  required  by  law  to 
audit  the  fees  of  trial  justices  and  of  special  justices  for  police, 
municipal  or  district  courts  whose  salaries  are  not  fixed.  He 
shall  also  receive  from  the  medical  examiner  of  the  district  a 
report  of  each  autopsy,  which  report  shall  be  an  attested  copy 
of  the  record  of  the  autopsy,  and,  if  satisfied  that  an  autopsy 
was  necessary,  shall  so  certify  to  the  county  commissioners  or, 
in  the  county  of  Suffolk,  to  the  auditor  of  Boston. 

In  the  prosecution  of  criminal  cases  in  which  questions  of  law 
are  carried  to  the  Supreme  Court,  the  district  attorney  may 
have  the  necessary  copy  of  the  brief  for  the  Commonwealth 
printed,  the  expenses  to  be  paid  in  the  same  manner  as  the 
other  expenses  in  the  case,  that  is,  by  the  Commonwealth;  and 
it  is  his  duty  to  forward  to  the  prison  officers  a  criminal  history 
of  each  prisoner,  as  shown  upon  the  trial. 

In  brief,  the  district  attorneys  within  their  respective  dis- 
tricts are  the  attorneys  of  the  Commonwealth  in  the  Superior 
Court  in  all  cases,  criminal  or  civil,  in  which  the  Commonwealth 
is  a  party  or  with  which  it  has  to  do,  and,  in  hearings  in  the 
Supreme  Judicial  Court  in  all  questions  of  law  arising  in  cases 
in  which  they  represent  or  have  charge,  are  assistants  to  the 
Attorney-General  and  perform  such  of  his  duties  as  are  not 
required  of  him  personally.  In  the  proceedings  of  the  grand 
jury,  while  theoretically  the  district  attorney  is  only  the  agent 
and  oflBcial  adviser  of  the  grand  jury,  in  practice  it  acts  upon 


329 

his  initiative  and  his  findings;  he  subpoenas  witnesses  to  ap- 
pear before  it  and  co-operates  with  the  police  department  in  its 
investigation  of  criminal  cases.  In  cases  of  necessity  the  dis- 
trict attorney  may  interfere  in  criminal  prosecutions  in  the 
lower  district,  municipal  or  police  courts  for  the  furtherance  of 
justice,  but  in  practice  most  of  his  activity  is  confined  to  the 
prosecution  of  the  greater  crimes  and  felonies.  Recently,  by  a 
statute  passed  in  1911,  chapter  456,  courts  were  given  a  further 
power  of  apprehending  deserting  husbands,  searching  for  them 
wherever  they  might  find  them  and  punishing  them  in  the 
criminal  court.  The  district  attorney  is  also  empowered  to  take 
note  of  criminal  offences  brought  out  in  the  evidence  in  divorce 
cases  and  may  prosecute  the  guilty  party. 

In  order  to  render  the  course  of  justice  more  expeditious 
the  district  attorney  in  certain  districts  is  given  the  power  to 
appoint  assistant  district  attorneys,  who  are  removable  at  his 
pleasure.  The  salaries  of  the  district  attorneys  and  their  assist- 
ants are  paid  by  the  Commonwealth,  and  range  from  $1,350  for 
the  northwestern  district  (Franklin  and  Hampshire)  to  $7,000 
in  Suffolk.  The  salaries  for  the  assistant  district  attorneys  are 
proportionately  less  (the  eastern,  southeastern  and  northern  dis- 
tricts $2,000  each  and  Suffolk  $3,800).  The  junior  assistant 
district  attorneys  receive  compensation  ranging  from  $1,200 
(Worcester)  to  $2,500  (Suffolk). 

A  public  prosecuting  attorney  is  found  in  the  other  New 
England  States,  but  his  title  varies.  Thus  Vermont  calls  him 
prosecuting  attorney;  Connecticut,  State's  attorney;  Maine, 
county  attorney,  and  New  Hampshire,  county  solicitor.  The 
term  also  varies;  two  years  being  the  rule  in  Maine,  New  Hamp- 
shire, Vermont  and  Connecticut,  and  in  all  States  except 
Connecticut  he  is  elected  by  the  voters  of  bis  district.  In 
Connecticut  the  Superior  Court  appoints  him. 

(/)  Registers  of  Deeds. 
The  forerunner  of  the  registry  of  deeds  was  the  act  of  the 
General  Court  of  the  Massachusetts  Bay  Colony  in  1634,  au- 
thorizing a  constable  and  four  more  of  the  chief  inhabitants  in 
each  town  to  make  a  survey  of  the  land  of  all  inhabitants  and 
enter  the  same  in  a  book  and  deliver  the  transcript  to  the  court, 


330 

and  directing  that  this  record  should  be  sufficient  assurance  to 
every  free  inhabitant  of  his  lands  and  tenements. 

In  September,  1639,  the  General  Court  ordered  the  recording 
of  all  men's  houses  and  lands,  and  the  duty  of  recording  was 
assigned  to  Stephen  Winthrop.  The  following  year  it  was 
ordered  that  no  mortgage,  sale,  bargain  or  grant  should  be  of 
force  unless  recorded,  and  in  1642  the  clerk  of  every  shire  town 
was  named  to  enter  deeds.  In  1697  the  Province  law  stated 
that  clerks  of  the  inferior  courts  in  each  county  were  to  be 
registers  of  deeds.  The  Province  law  in  1715  provided  for  the 
election  b}^  the  freeholders  of  a  register  of  deeds  in  every  county 
for  five  years,  and  directed  that  a  public  office  be  kept  for 
registering  deeds. 

The  Province  made  a  new  law  in  1720,  providing  for  the 
election  of  a  register  of  deeds  in  each  county  "every"  five  years, 
who  should  keep  an  office  open  daily  for  the  books,  records,  files 
and  papers  belonging  thereto. 

For  the  purpose  of  recording  these  deeds,  mortgages,  leases, 
etc.,  the  Commonwealth  now  divides  each  county  into  districts, 
the  number  of  which  varies  according  to  the  area  of  the  county 
and  the  accessibility  of  the  places  where  the  deeds  are  recorded. 
Thus  the  counties  of  Berkshire  and  Bristol  are  divided  into  three 
districts,  the  counties  of  Essex  and  Worcester  are  divided  into 
two  districts,  and  in  the  other  counties  it  is  provided  that  the 
register  of  deeds  shall  be  established  in  the  "shire"  town  thereof. 
The  county  of  Suffolk,  composed  of  the  city  of  Boston,  the  cities 
of  Chelsea  and  Revere  and  the  town  of  Winthrop,  maintains  a 
register  of  deeds  for  the  county  in  its  "shire"  city,  Boston. 

Registers  of  deeds  are  elected  for  terms  of  five  years  at  the 
annual  State  election.  Where  a  county  is  divided  into  two  or 
more  districts,  there  is  a  register  of  deeds  for  each.  They  must 
be  residents  of  the  district  for  which  they  are  elected  and  may 
be  removed  by  the  county  commissioners  or,  in  Suffolk  County, 
by  the  Superior  Court,  for  misconduct  in  their  official  duties  or 
if  suffering  from  bodily  or  mental  infirmity. 

Upon  a  vacancy  in  the  office  in  all  counties  except  Suffolk 
and  Nantucket,  the  county  commissioners  may  appoint  a  person 
to  fill  such  office  until  a  new  register  is  elected  and  qualified.  In 
Suffolk  County  the  vacancy  is  filled  by  appointment  by  the 


331 

Superior  Court  justices,  and  in  Nantucket  the  selectmen  make 
a  temporary  appointment  until  a  new  register  has  been  elected 
at  a  specially  called  meeting  of  the  voters. 

The  register  is  required  to  give  bond  with  such  sureties  and 
in  such  sum  as  the  county  commissioners  or,  in  the  county  of 
Suffolk,  the  board  of  aldermen  (now  the  City  Council),  approve, 
and  he  is  sworn  before  the  county  commissioners  or,  in  the 
county  of  Suffolk,  before  the  City  Council,  for  the  faithful  per- 
formance of  his  duties. 

Registers  may  appoint,  subject  to  the  approval  of  the  Su- 
perior Court,  assistant  registers  of  deeds,  and  they  may  be 
removed  at  the  pleasure  of  the  register,  and  for  their  official  acts 
he  is  responsible. 

The  duties  of  the  register  of  deeds  are  to  receive  for  registra- 
tion deeds,  mortgages,  leases,  and  all  other  papers  affecting 
realty  in  his  district,  such  as  assignments  and  discharges  of 
mortgages,  liens,  etc.  After  the  receipt  of  papers  for  record  he  is 
especially  charged  with  the  duty  of  arranging  them  in  alphabeti- 
cal order  and  of  having  proper  copies  of  them  made  with  dupli- 
cate indices,  and  he  is  required  to  submit,  before  the  first  day  of 
January,  to  the  county  commissioners  an  estimate  of  the  cost  for 
the  ensuing  year  for  indexing  the  records.  In  the  county  of 
Suifolk  the  indexing  of  the  records  is  under  the  charge  of  a 
board  of  three  index  commissioners,  appointed  by  the  Superior 
Court,  and  serving  without  pay. 

The  records  are  to  be  open  to  the  public  and  are  not  to  be 
removed  from  the  office  of  the  register,  and  when  not  in  use  are 
kept  in  a  fireproof  vault,  safe  or  room.  The  register  must  have 
copies  made  of  the  same  whenever  the  books  are  worn,  muti- 
lated or  have  become  illegible.  The  register  of  deeds  also  acts 
as  the  assistant  recorder  for  the  registration  of  titles,  and  as  such 
is  sworn  before  the  judge  of  the  Land  Court,  and  gives  a  bond 
for  the  faithful  performance  of  his  duties. 

The  salaries  of  the  registers  of  deeds  are  fixed  by  statute 
(chapter  452,  Acts  of  1904),  when  the  amount  of  compensation 
was  graded  according  to  the  average  yearly  receipts  of  the 
registry  for  five  years  preceding  1903.  The  salaries  range  from 
$600  in  Nantucket,  based  upon  yearly  receipts  of  less  than 
Sl,500,  to  $5,000  in   Suffolk  and  Southern   Middlesex,  based 


332 

upon  yearly  receipts  of  $3,000  or  more.  Assistant  registers 
receive  one-half  the  salaries  of  the  registers.  It  is  also  provided 
that  the  salaries  of  these  registers  and  their  assistants  shall  be 
readjusted  in  January,  1916,  and  every  five  years  thereafter 
upon  the  basis  of  the  average  yearly  receipts  of  the  respective 
registries  for  the  five  preceding  years. 

In  addition  to  his  salary  as  register  of  deeds  each  register 
receives  a  salary,  fixed  by  the  Governor  and  Council,  for  acting 
as  assistant  recorder  of  titles  passing  through  the  Land  Court. ^ 
Thus  at  the  present  time  (1916-1917)  the  register  of  deeds  of 
Suffolk  County,  as  such  assistant  recorder,  receives  $2,554.86  a 
year  in  addition  to  $5,000  a  year  from  the  county  of  Suffolk. 

The  register  of  deeds  as  a  county  officer  exists  also  in  Maine 
and  New  Hampshire,  where  the  register  is  elected  for  a  term  of 
four  and  two  years  respectively.  The  New  Hampshire  system  is 
modelled  on  that  of  Massachusetts,  where  a  register  for  each 
district  into  which  the  county  is  divided  is  found.  In  Maine, 
however,  if  there  are  two  districts  in  a  county,  the  register  of 
the  shire  town  appoints  a  clerk  to  act  as  register  in  the  other 
district.  In  the  other  New  England  States  the  work  is  performed 
by  the  towns. 

(g)     Registers  of  Probate. 

Originally  wills,  administrations  and  inventories  were  proved 
before  the  Governor  and  Court  of  Assistants  in  the  Massachu- 
setts Bay  Colony,  and  before  the  Governor  and  Council  in 
Plymouth  Colony.  By  order  of  the  General  Court  on  Septem- 
ber 9,  1639,  wills,  administrations  and  inventories  were  brought 
to  a  recorder  at  Boston  (Stephen  Winthrop),  there  to  be 
recorded. 

In  1652  "Recorders,  or  clerks  of  County  Courts,"  were 
named  to  record  wills;  and  in  1657  the  fees  for  recording  were 
established.  In  1685  the  county  courts  were  authorized  to  hear 
and  determine  all  cases  relating  to  wills  and  administrations. 
By  the  charter  of  William  and  Mary  the  Governor  and  Council 
were  authorized  to  probate  wills  and  grant  letters  of  adminis- 
tration, and  under  the  powers  of  this  charter  the  Governor  and 
Council  appointed  in  1692  judges  and  registers  of  probate,  and 
the  General  Court  enacted  that  wills  were  to  be  proved  before 

>  Twenty-five  dollars  a  month  and  one-third  of  the  entry  receipts. 


333 

"Judges  of  Probate,"  and  "Registers  of  Probate  for  each 
county"  were  to  record  them.  This  arrangement  continued 
during  the  entire  time  of  the  Province. 

The  duties  of  proving  wills  and  of  recording  them,  —  the  one 
performed  by  a  member  of  the  county  court  as  "Judge  of  Pro- 
bate," and  the  other  entered  as  a  county  record  by  a  "Register 
of  Wills,"  who  was  the  County  Clerk  under  the  provincial 
government,  —  were  given  to  a  new  "Court  of  Probate"  estab- 
lished in  each  county  in  1784.  The  court  in  each  county  had 
a  judge  of  probate  and  a  register  of  wills  appointed  by  the 
Governor.  In  1856  a  court  of  insolvency  and  a  register  of 
insolvency  in  Suffolk  County  were  authorized,  but  in  1858  the 
offices  of  judge  and  register  of  probate  and  insolvency  were 
established  in  each  county,  the  register  to  be  elected  every  five 
years,  the  judge  to  be  appointed  by  the  Governor. 

The  registers  of  probate  and  insolvency  are  chosen  by  the 
voters  in  each  county,  and  hold  office  for  the  term  of  five  years, 
beginning  with  the  first  Wednesday  in  January  in  the  year  suc- 
ceeding their  election.  Residence  in  the  district  is  not  required. 
Vacancies  are  filled  by  the  Governor,  with  the  advice  and  con- 
sent of  the  Council,  the  appointee  holding  office  until  the  elec- 
tion of  a  new  register. 

Since  1898,  when  the  Federal  Bankruptcy  Act  was  passed, 
jurisdiction  over  insolvency  proceedings  has  been  taken  away 
from  the  States,  and  the  register  of  probate  and  insolvency  has 
lost  all  connection  with  that  subject. 

Registers  of  probate,  as  well  as  assistant  registers,  are  paid  by 
the  Commonwealth,  but  clerical  assistants  in  their  offices  are 
paid  by  their  respective  counties,  upon  the  sworn  certificate  of 
the  register  that  the  work  has  been  actually  performed  and  the 
amount  specified  is  correct.  It  is  specially  provided  in  the  case 
of  the  county  of  Suffolk  that  the  expenses  of  recording  probate 
proceedings  not  exceeding  a  fixed  sum  in  any  one  year  shall  be 
paid  by  the  county  of  Suffolk,  upon  the  official  certificate  of  the 
register,  countersigned  by  the  judge  of  the  Probate  Court  for 
said  county. 

Registers  of  Probate  in  the  counties  of  Maine  and  New 
Hampshire  are  elected  by  the  voters  thereof.  In  Maine  the 
term  is  four  years,  in  New  Hampshire  two  years,  and  they  may 


334 

be  removed  by  the  judge  in  Maine  and  by  the  Supreme  Court 
in  New  Hampshire.  In  both  these  States  as  well  as  in  Massa- 
chusetts, the  office  is  purely  administrative.  It  is  the  duty  of 
the  register  to  act  as  the  clerical  assistant  to  the  judge  of  pro- 
bate when  holding  court  and  as  an  executive  officer  for  the 
transacting  of  business  and  the  receiving  and  recording  of 
papers. 

The  salaries  of  the  registers  of  probate  in  Massachusetts  vary 
from  $1,000  in  Nantucket  and  Dukes  to  $5,000  in  Suffolk  and 
Middlesex. 

While  the  registers  of  the  Probate  Court  are  elected,  the 
judges  of  the  Probate  Court  for  each  county  in  Massachusetts 
and  New  Hampshire  are  appointed  by  the  Governor  and  Coun- 
cil. (See  Amendment  to  Constitution  of  Massachusetts,  Article 
XIX.)  In  Vermont  and  Connecticut,  however,  the  probate 
judges  are  elected  biennially. 

Appointive  Officers. 
(a)  Justices  of  County  Courts. 
The  only  courts  which  can  now  really  be  called  county  courts 
are  the  municipal,  district  and  police  courts.  Although  these 
titles  may  seem  to  take  the  courts  outside  a  study  of  county 
affairs,  nevertheless  they  may  be  truly  regarded  as  county 
offices,  as  their  total  expenditures  are  supported  by  each  indi- 
vidual county.  The  other  courts  in  the  judicial  system  of  the 
Commonwealth  —  the  Superior  and  Supreme  Courts  —  have 
jurisdiction  over  the  entire  State  and  not  in  one  particular 
county,  and  the  salaries  of  the  judges  are  paid  by  the  State; 
but  in  the  case  of  the  Superior  Court  all  the  other  expenses, 
both  for  salaries  of  clerks  and  attendants,  as  well  as  mainte- 
nance, are  paid  by  the  individual  counties  in  which  the  court 
has  regular  sittings.  Suft'olk  County,  in  addition  (and  this  is 
peculiar  to  Suffolk  County  alone),  maintains  an  office  for  the 
Supreme  Court  for  Suffolk  County  and  pays  the  major  part  of 
the  salary  maintenance  for  clerk  and  clerical  assistants  and  all 
of  the  expenses  for  supplies.  The  Probate  Court  also  has  juris- 
diction in  separate  counties,  but  a  large  part  of  the  expense  is 
borne  by  the  Commonwealth  and  not  by  the  counties. 


335 

The  justices  of  all  the  courts  throughout  the  Commonwealth 
are  appointed  by  the  Governor,  subject  to  the  approval  of  the 
Governor's  Council,  and  hold  office  during  good  behavior.  In 
practice  their  terra  is  for  life,  but  they  may  be  removed  for  mis- 
feasance. Judges  appointed  to  the  police,  district  or  municipal 
courts  are  supported  by  the  county  in  which  the  court  is  situated 
and  their  jurisdiction  is  coterminous  with  the  geographical  limits 
of  their  courts.  Salaries  of  municipal,  police  and  district  judges 
vary,  although  classified  on  the  basis  of  district  population.  In 
SuflFolk  salaries  of  justices  in  three  typical  courts  are  as  follows:  — 

Municipal  Court  of  the  City  of  Boston, S6,500i 

Roxbury  District  Court, 4,000 

Police  Court  of  Chelsea, 2,500 

Judges  of  Superior  or  Supreme  Courts  in  Maine  and  New 
Hampshire  are  appointed  by  the  Governor  and  Council,  in 
Rhode  Island  and  Connecticut  by  the  Legislature,  and  in  Ver- 
mont they  are  elected  for  two  years. 

(6)  Clerks  of  District  and  Municipal  Courts. 
While  clerks  of  the  higher  courts  are  elective  ofiicials,  the 
Governor,  with  the  approval  of  the  Council,  still  retains  the 
power  of  appointing  the  clerks  of  the  inferior  courts.  The 
appointments  are  for  terms  of  five  years.  The  clerks  of  these 
inferior  courts  have  power  to  appoint  their  subordinates,  but 
such  appointments  are  subject  to  the  approval  of  the  justice 
or  justices  of  the  courts. 

(c)  Medical  Examiners. 
Medical  examiners  (formerly  called  coroners,  an  office  abol- 
ished in  1877)  are  appointed  by  the  Governor,  with  the  ap- 
proval of  the  Governor's  Council,  for  a  term  of  seven  years. 
They,  as  well  as  the  associate  medical  examiners,  are  required 
to  be  men  of  medical  learning.  Their  number  is  prescribed  for 
each  county,  which  for  this  purpose  is  divided  into  districts. 
The  duties  of  medical  examiners  relate  chiefly  to  cases  of  death 
supposed  to  be  due  to  violence.  Their  compensation  is  in  the 
form  of  small  fees,  except  in  the  county  of  Suft'olk,  where  the 

>  Chief  Justice ;  $6,000  for  justices. 


336 

salaries  of  the  medical  and  associate  medical  examiners  are 
fixed.  In  addition  to  the  fees  received  for  each  autopsy  and 
the  compensation  for  actual  travel,  each  medical  examiner  re- 
ceives from  the  State  20  cents  for  the  first  twenty  and  10 
cents  for  every  other  notification  of  death  returned  by  him  to 
the  Commonwealth. 

In  Maine,  New  Hampshire  and  Connecticut,  the  coroner  is 
a  county  officer,  but  in  other  States  he  is  a  town  or  city  officer, 
although  frequently  appointed  by  the  State.  The  term  of  office 
is  also  variable.  Thus  Massachusetts  has  a  term  of  seven  years, 
Maine  during  good  behavior  and  New  Hampshire  for  five  years. 
In  Maine  and  New  Hampshire  one  or  more  appointments  are 
made  for  each  county  by  the  Governor  and  Council.  In  Con- 
necticut one  coroner  is  appointed  for  each  county  by  the  Su- 
perior Court,  though  he  in  turn  may  appoint  medical  exam- 
iners for  each  town. 

The  Massachusetts  system  of  appointing  a  person  qualified  by 
education  and  profession  as  medical  examiner,  and  the  division 
of  the  duties  on  autopsies  and  sudden  deaths  by  violence  between 
the  medical  examiners  and  the  public  prosecuting  attorneys  has 
been  endorsed  by  students  of  county  government  as  the  only 
means  of  obtaining  effective  administration  of  the  medical  ex- 
aminers' office.  Except  in  New  England  and  the  South  most 
States  elect  the  coroner  or  medical  examiner  for  two  or  four 
years  and  without  specifying  the  qualifications  which  appointees 
to  this  office  should  have.  It  is  generally  conceded  that  where 
the  office  is  elective,  the  coroner's  work  has  been  inefficient  and 
ineffective. 

(d)     County  Auditors  (Controller  of  County  Accounts). 

The  county  auditor,  as  a  county  official,  exists  in  New  Hamp- 
shire, Vermont  and  Connecticut,  but  no  such  office  is  found  in 
Massachusetts,^  outside  of  the  office  of  Controller  of  County 
Accounts  (established  in  188)7,  whose  jurisdiction  extends  over 
the  entire  State,  embracing  within  its  authority  all  the  coun- 
ties, their  offices  and  accounts. 

Prior  to  the  appointment  of  a  Controller  of  County  Accounts, 

1  In  Boston  tho  City  Auditor  acts  as  county  auditor  (for  which  he  receives  $800  a  year)  in 
approving  bills  against  the  county,  but  the  Controller  of  County  Accounts  has  jurisdiction  over 
all  county  of  Suffolk  offices,  except  the  county  treasurer's  office. 


337 

vaiioiis  boards  of  examiners  audited  county  accounts.  Thus  in 
1821  it  had  been  enacted  that  the  Judge  of  Probate,  the  Judge 
of  the  Municipal  Court  of  the  city  of  Boston,  and  the  Justices 
of  the  PoHce  Court  should  be  the  board  of  accounts  to  examine 
and  allow  all  bills  of  costs,  accounts  and  charges  arising  out  of 
proceedings  in  the  municipal  and  police  courts,  the  maintenance 
of  the  jails,  etc.  In  each  of  the  other  counties  by  act  of  1835, 
a  board  of  examiners,  consisting  of  the  judge  of  probate,  the 
register  of  probate,  and  the  clerk  of  the  Court  of  Common  Pleas 
was  authorized. 

In  1879  the  commissioners  of  savings  banks  were  made  com- 
missioners of  county  accounts  to  examine  the  accounts  of  the 
different  county  officers,  superseding  the  old  board  of  examiners 
in  this  respect  in  all  counties  except  Suffolk,  and  the  board  of 
accounts  in  Suffolk. 

In  1887,  however,  a  new  office  was  created  for  this  work,  the 
office  of  Controller  of  County  Accounts,  which  is  filled  by 
appointment  by  the  Governor  foi  a  term  of  three  years.  There 
are  auditors,  however,  appointed  by  the  courts  in  the  trial  of 
civil  actions,  whose  per  diem  compensation  is  paid  by  the 
county  in  which  the  case  occurs,  if  they  are  appointed  by  the 
Supreme  Judicial  Court,  Superior  Court  or  Probate  Court;  but 
if  they  are  appointed  in  any  other  court  the  parties  to  the 
action  pay  for  their  services. 

These  auditors  appointed  by  the  courts,  however,  do  not  cor- 
respond to  the  county  auditors  appointed  in  the  three  States 
mentioned  above.  The  office  analogous  to  them  in  Massachu- 
setts is  that  of  the  Controller  of  County  Accounts,  who  has 
supervisory  power  over  all  the  financial  accounts  of  a  county 
office.  It  is  his  duty  to  examine  the  accounts  of  county  treas- 
urers, except  in  Suffolk  County,  at  least  once  a  year,  and  also, 
at  least  once  a  year,  to  visit  without  previous  notice  all  other 
county  officers  who  receive  money  paid  by  them  to  the  county 
treasurer,  viz.,  clerks  of  the  Supreme  Judicial  Court  and  the  Su- 
perior Court  of  Suffolk  County,  the  recorders  and  the  assistant 
recorders  of  the  Land  Court,  registers  of  probate  and  of  deeds, 
clerks  of  the  police  and  district  courts  and  truant  schools,  and 
to  make  an  examination  of  all  their  accounts  and  vouchers. 
If  the  accounts  are  incorrect,  the  Controller  gives  notice  in 


338 

writing  to  the  county  commissioners  and  to  the  Attorney- 
General,  and  makes  a  full  statement  thereof  in  his  annual  re- 
port. He  examines  at  least  once  a  year  the  bonds  of  public 
officers,  except  the  county  treasurer  and  officers  in  the  county 
of  Suffolk. 

The  salary  paid  to  the  Controller  is  $2,500  a  year,  and  he 
has  the  power  to  appoint  deputies,  whose  salaries  range  from 
$1,200  to  $1,800,  all  payable  by  the  Commonwealth,  and  in 
addition  is  allowed  actual  traveling  expenses  for  himself  and 
his  deputies. 

The  exercise  of  supervision  over  county  accounts  in  other 
New  England  States  is  diverse.  Thus  New  Hampshire  county 
auditors  (two  to  each  county)  represent  the  two  leading  political 
parties  and  are  appointed  by  the  Supreme  Court.  In  Con- 
necticut the  county  convention  (a  body  composed  of  those 
members  of  both  houses  of  the  State  Legislature  elected  from 
any  given  county)  appoints  biennially  two  county  auditors 
from  the  two  leading  political  parties;  while  in  Vermont  the 
two  commissioner  judges  appoint  an  auditor  for  each  county 
every  two  years.  In  New  Jersey  in  counties  of  the  first  class, 
a  "county  supervisor"  is  provided  for,  who  has  powers  analo- 
gous to  those  usually  conferred  upon  the  mayor  of  a  city  not 
of  the  commission  government  type.  He  keeps  the  board  of 
"chosen  freeholders"  informed  as  to  the  state  of  the  county 
finances,  attends  to  the  enforcement  of  the  laws,  supervises  the 
subordinate  officers  and  holds  the  veto  power. 

IV.    HOUSES  OF  CORRECTION  AND  JAILS. 

The  power  which  the  sheriff  had  enjoyed  since  early  colonial 
times  (as  beadle  or  marshal  until  1687  and  since  then  as 
sheriff)  of  being  keeper  of  the  county  jails  and  houses  of  cor- 
rection was  reduced  by  the  Legislature  in  1857,  by  the  enact- 
ment of  a  statute  creating  a  "board  of  directors  for  public 
institutions"  for  the  city  of  Boston  and  the  county  of  Suffolk, 
to  which  was  given  authority  over,  among  other  places,  the 
House  of  Correction,  but  leaving  the  county  jail  still  under 
authority  of  the  sheriff  of  the  county.  Then  in  1859  it  was 
enacted  that,  except  in  Suffolk,  the  county  jail  and  the  house 
of  correction  in  each  county  should  be  considered  one  and  the 


339 

same  institution,  and  the  sheriff  of  the  county  should  be  in 
charge  of  it. 

In  aU  counties  of  the  Commonwealth,  with  the  exception  of 
Dukes  and  Suffolk,  the  County  Commissioners  are  required  to 
provide  a  house  or  houses  of  correction  for  the  safe  keeping  of 
offenders  legally  committed  thereto  by  the  courts  of  the  Com- 
monwealth or  the  United  States.  (See  Revised  Laws,  chapter 
20,  section  5,  and  chapter  224,  section  8.) 

The  houses  of  correction  are  in  charge  of  a  master  or  keeper, 
appointed  by  the  sheriff  of  the  county,  except  in  the  case  of 
Suffolk  County,  where  the  city  penal  institutions  commissioner 
appoints  the  master.  The  master  or  keeper  of  the  jail  and  the 
house  of  correction  has  the  power  to  appoint  and  is  responsible 
for  his  subordinate  officers.  The  compensation  for  these  officers, 
assistants  and  employees  is  fixed  by  the  county  commissioners; 
but  any  sheriff,  master  or  keeper  of  jails  who  considers  his 
salary  inadequate  may  present  a  petition  to  the  Superior  Court, 
which,  after  notice  to  the  chairman  of  the  county  commissioners 
of  a  hearing,  shall  fix  the  salary.  Houses  of  correction  are  sub- 
ject to  the  supervision  of  the  county  commissioners,  who  are 
charged  with  the  duty  of  visiting  them  and  examining  them 
annually. 

Supplies  for  the  jails  are,  with  the  exception  of  the  county 
of  Suffolk,  furnished  and  bought  by  the  county  commissioners, 
who  may  order  at  their  discretion  special  rations  when  they 
deem  it  necessary,  and  the  master  or  keeper  of  the  house  of 
correction  is  directed  under  penalties  to  supply  these  special 
articles  of  food. 

Each  county  is  also  commanded  to  provide  jails,  which  differ 
from  houses  of  correction  in  that  persons  charged  with  crime 
and  committed  for  trial,  witnesses  on  trial  for  criminal  cause, 
criminals  awaiting  transfer  to  permanent  penal  institutions,  and 
persons  detained  or  committed  by  the  courts  of  the  United 
States,  or  poor  debtors  arrested  on  civil  process  are  kept 
therein.  Houses  of  correction,  on  the  other  hand,  are  exclu- 
sively for  the  imprisonment  of  persons  after  they  have  been 
convicted  of  offences  against  the  law. 

The  sheriffs  of  the  counties  are  in  direct  control  of  the  jails, 
and  as  such  receive  salaries  in  addition  to  their  salaries  as  sher- 


340 

iffs.  They  may  appoint  their  subordinates  in  the  administra- 
tion of  the  jail,  and  the  salaries  of  these  subordinates  are  fixed 
by  the  county  commissioners.  The  sheriff  is  authorized  to  re- 
ceive from  the  county  as  compensation  not  less  than  $20  a  year 
for  the  safe  keeping  of  persons  committed  to  his  custody,  and 
in  the  county  of  Suffolk  such  sums  as  the  Mayor  and  Alder- 
men (City  Council)  may  determine. 

V.    REFORM  SCHOOLS. 

The  county  commissioners  are  also  directed  in  their  discre- 
tion and  at  the  expense  of  the  county  to  establish  houses  of  . 
reformation  for  juvenile  offenders  under  sixteen  years  of  age, 
for  offences  which  are  punishable  by  imprisonment  or  for  the 
non-payment  of  fines.  The  county  commissioners  are  in  con- 
trol of  these  houses  of  reformation,  and  may  make  rules  and 
regulations  for  the  appointment  of  teachers,  officers,  etc.,  and 
have  the  power  to  discharge  and  release  all  persons  who  are 
sentenced  there.  In  the  county  of  Suffolk  the  duty  of  main- 
taining a  reform  school  was  assigned  by  special  act  to  a  city 
department  called  the  Children's  Institutions  Department, 
which  maintained  a  Parental  School  in  West  Roxbury  for 
truants.  This  school  was  abolished  in  1914.  The  city  of  Bos- 
ton, through  the  Children's  Institutions  Department,  still 
maintains  on  one  of  the  islands  in  the  harbor  (Rainsford 
Island)  the  Suffolk  School  for  Boys,  to  which  juvenile  offenders 
are  sentenced. 

The  other  counties  of  the  State,  with  the  exception  of  Barn- 
stable, Berkshire,  Dukes  and  Nantucket,  are  commanded  to 
maintain  either  separately  or  jointly  a  truant  school  for  in- 
struction and  training  of  juveniles  committed  as  habitual  tru- 
ants, absentees  or  school  offenders.  If  two  or  more  counties 
join  for  the  establishment  of  a  joint  school,  the  control  of  it  is 
vested  in  the  chairmen  of  the  county  commissioners  of  such 
counties,  who  receive  for  this  work  salaries  of  $100  a  year  from 
each  of  the  counties  so  joined. 

In  the  counties  of  Barnstable,  Berkshire,  Dukes  and  Nan- 
tucket it  is  specially  provided  that  they  shall  establish  a  truant 
school  as  a  place  for  the  instruction  and  training  of  children 
committed  in  their  respective  counties  as  habitual  truants,  and 


341 

shall  pay  for  their  support  in  said  school  such  sums  as  the 
county  commissioners  having  control  thereof  may  determine. 

Truant  schools  of  the  counties  are  subject  to  visits  by  the 
Board  of  Education  and  by  the  State  Board  of  Charity.  These 
boards  are  charged  with  the  duty  of  reporting  annually  to  the 
General  Court  regarding  the  condition  of  these  schools. 

VI.    THE  FEE  AND  CIVIL  SERVICE   SYSTEMS   IN   COUNTY 

GOVERNMENT. 

1.    Fee  System. 

Massachusetts  may  be  regarded  as  very  advanced  and  as 
very  backward  in  its  treatment  of  the  above  two  subjects. 
This  may  seem  strange  at  first  sight,  but  it  is  nevertheless  the 
fact.  The  fee  system  in  county  government,  as  well  as  in  the 
other  branches  of  the  administrative  offices  of  the  State,  has 
been  almost  entirely  abolished  with  the  exception  of  the  fees 
received  by  the  register  of  deeds  ^  and  by  the  sheriff  and  his  depu- 
ties for  serving  civil  processes.  All  other  fees  received  by  county 
officials  are  turned  over  to  the  county  treasurer.  The  sheriff's 
fees,  according  to  a  statement  made  by  a  deceased  sheriff  of 
Suffolk  County,  amounted  to  upwards  of  $26,000  a  year.  (See 
Finance  Commission  Reports,  X,  p.  133.)  Fees  in  Suffolk 
County  are  pooled  and  are  divided  up  among  the  sheriffs  and 
their  deputies.  Whether  the  above  amount  is  only  a  rough 
approximation,  it  is  impossible  to  tell,  because  no  return  is  made 
to  any  public  supervising  authority,  either  in  Suffolk  or  in  any 
other  county  of  the  State.  It  is  one  of  the  surviving  archaisms 
in  the  administrative  department  of  the  government  of  Massa- 
chusetts. It  is  true,  however,  that  there  are  other  county 
officers,  such  as  trial  justices  and  medical  examiners,  who  are 
paid  a  stipulated  fee  for  each  sitting  or  autopsy;  but  such  pay- 
ment, being  made  by  the  county,  is  in  the  nature  of  a  salary. 

Attempts  in  Massachusetts  to  abolish  the  system  of  fees  and 
to  place  the  office  of  deputy  sheriff  upon  a  salary  basis  have 
been  vigorously  and  thus  far  successfully  combated. 

The  practice  of  allowing  sheriffs  to  retain  fees  is  found  in 
many  other  States.  New  York  and  New  Jersey  give  telling 
examples  of  the  working  of  the  system  in  these  States.  In  the 
State  of  New  York  in  two  counties  (New  York  and  Richmond) 

*  A  certain  portion  of  entry  receipts  is  paid  to  the  register  of  deeds  for  acting  as  assistant 
recorder  of  the  Land  Court. 


342 

the  sheriff  receives  both  salary  and  fees;  in  Richmond  he 
receives  $6,000  a  year  and  all  his  fees;  in  New  York,  $12,000  a 
year  and  half  his  fees.  In  the  period  from  1906  to  1914  in  New 
York  County  his  share  of  the  fees  amounted  to  $408,324.44, 
and  this  sum  was  apportioned  among  the  various  sheriffs  who 
held  office  during  these  years.  One  sheriff  (Julius  Harburger)  in 
1912-1913  received  $98,769.24  in  fees,  a  sum  sufficient  to  allow 
him  to  retire  to  private  life  and  to  affluence.  In  order  to  cure 
the  evil  a  bill  was  introduced  into  the  Legislature  by  the  present 
sheriff  of  New  York  County  to  limit  his  salary  to  $12,000  a 
year,  but  it  failed  of  passage. 

In  New  Jersey,  however,  the  salary  plan  for  the  county 
clerk,  register,  sheriff  and  surrogate  was  tried  and  the  fee  sys- 
tem abolished,  but  instead  of  a  revenue  being  turned  over  to 
the  county  (Hudson)  a  deficit  resulted  on  account  of  the  exces- 
sive patronage  in  the  number  of  new  positions  created. 

The  system  of  fees  to  public  officials,  either  in  lieu  of  salary 
or  in  addition  to  salary,  is  gradually  being  abolished  in  all 
counties  of  the  country;  but  one  will  find  in  certain  offices, 
especially  the  sheriff's,  that  the  fee  system  still  exists.  Thus  in 
New  Hampshire  the  register  of  deeds  and  the  medical  examiners 
are  still  paid  by  fees;  in  Vermont  the  register  of  probate  re- 
ceives fees  in  addition  to  salary,  the  registers  of  deeds  are  paid 
by  fees,  and  in  Connecticut  the  judge  and  the  clerk  of  probate, 
as  well  as  register  of  deeds,  coroners  and  medical  examiners, 
are  paid  by  fees. 

2.  Civil  Service. 
The  introduction  of  the  civil  service  idea  or  merit  system  in 
county  appointments  has  also  been  fought  as  hard  as  the 
abolition  of  the  fee  system;  but  notwithstanding  the  alignment 
of  the  tremendous  forces  of  the  county  "ring"  against  it,  the 
merit  system  is  spreading.  When  the  Commonwealth  of  Mas- 
sachusetts in  1883  adopted  the  principle  of  civil  service  exami- 
nation and  appointment  for  city,  town  and  State  employees, 
the  influence  of  the  county  officeholders  was  strong  enough  to 
have  county  positions  excluded.  No  valid  reason  existed  then 
or  can  be  advanced  now  for  the  exclusion  of  the  county  em- 
ployee from  the  benefits  of  civil  service  protection,  or  for  the 
exclusion  of  the  general  public  from  opportunities  for  county 


343 

employment,  but  the  measure  was  passed  with  the  ehmination 
of  the  county  employee.  Recently  attempts  have  been  made  to 
cure  this  defect  in  the  civil  service  law,  but  with  one  exception 
they  have  been  failures.  In  1915  (Special  Acts,  chapter  IIG)  an 
act  was  passed  placing  under  the  jurisdiction  of  the  civil  service 
commission  the  house  of  correction  in  Suffolk  County,  but  the 
reform  ended  there.  That  such  a  state  of  affairs  is  not  just, 
either  to  the  appointing  power  or  to  the  public,  is  forcibly 
pointed  out  in  a  report  issued  by  the  justices  of  the  Municipal 
Court  of  the  City  of  Boston  in  1915,  as  follows:  — 

The  working  force  of  the  court  has  so  increased  with  the  increase  in 
its  business  as  to  suggest  consideration  of  change  of  methods  of  appoint- 
ment. The  soUcitations  of  candidates  and  their  friends  absorb  too  much 
time,  and  the  appearance  of  being  a  large  dispenser  of  patronage  is  not 
a  good  thing  for  any  court.  There  seems  no  reason  why  all  future  va- 
cancies in  the  ordinary  clerical  service  and  in  court  officers'  positions 
might  not  be  adequately  filled  through  civil  service  methods. 

Notwithstanding  this  opinion  of  the  justices  of  a  court  of 
large  influence,  the  extension  of  civil  service  to  the  counties  has 
not  taken  place. 

INIany  States  outside  New  England  have  taken  up  the  ques- 
tion of  the  extension  of  the  merit  system  to  counties,  and  in 
many  cases  through  referendum  vote  the  people  have  adopted 
it.  In  other  States  it  has  become  effective  through  statutory 
enactment.  Civil  service  laws  are  in  operation  in  seventeen 
counties  in  New  York,  in  one  county  in  Colorado,  in  one  county 
in  California  and  in  Illinois,  and  in  five  counties  in  New  Jersey. 
In  1913  a  bill  was  passed  by  the  Ohio  Legislature  covering  not 
only  city  and  State  positions,  but  also  county  appointments. 
(See  Article  XV,  section  10.) 

This  is  the  extent  to  which  civil  service  has  been  carried  in 
county  offices  in  the  United  States. 

YLl.    MANDATORY    LEGISLATION     AFFECTING     COUNTIES 
IN  MASSACHUSETTS. 

A  survey  of  the  laws  which  have  been  passed  by  the  General 
Court  in  the  last  seventy-five  years  shows  the  enormous  num- 
ber of  legislative  mandates  for  county  action  and  the  meager 
amount  of  independent  action  in  adminstrative  matters  left  to 


344 

county  officials.  If  these  bills  were  analyzed,  one  would  be 
astonished  at  the  large  number  of  acts  yearly  passed  increasing 
the  compensation  of  individual  clerks  and  employees  of  the 
counties.  Year  after  year  the  records  of  the  General  Court  are 
filled  with  acts  relating  to  counties,  imposing  upon  them  special 
financial  burdens  in  the  form  of  increased  salaries  for  county 
ofiiceholders. 

A  tabulation  was  made  of  the  years  1840  to  1892,  and  out  of 
425  mandatory  acts  passed  relating  to  counties,  118  applied 
exclusively  to  the  establishment  of  salaries,  or  to  an  increase  in 
them.  These  are  burdens  put  upon  counties  without  the  con- 
sent of  the  counties  themselves,  and  without  any  attempt  to 
follow  the  wishes  or  to  learn  the  desires  of  the  county  free- 
holders. That  legislative  committees  cannot  in  the  nature  of 
things  be  as  correctly  informed  or  have  knowledge  of  the  actual 
merits  of  each  salary  increase  is  obvious,  and  the  ever-increas- 
ing complexity  and  multitude  of  county  positions  only  serve  to 
add  greater  weakness  to  any  control  or  proper  audit  by  such  a 
committee.  It  is  conceded  that  many  of  these  purely  organiza- 
tion features  could  better  be  dealt  with  by  the  local  county 
authorities  in  the  light  of  local  needs  and  with  the  added  advan- 
tage of  first-hand  information  and  observation.  Counties  in 
general  have  suffered  much  from  the  creation  of  needless  statu- 
tory positions.  It  is  the  greatest  inconsistency  on  the  part  of 
the  States  that  they  have  given  to  cities  and  towns  a  great 
measure  of  freedom  and  home  rule  in  their  administrative  func- 
tions, but  have  denied  even  a  reasonable  amount  of  home  rule 
to  counties.  States  are  beginning  to  recognize  this  inconsist- 
ency and  are  allowing  to  counties  more  autonomy.  Thus  the 
legislators  of  California  in  1911  recognized  that  there  were  a 
number  of  subjects  which  the  local  electorate  and  the  local  au- 
thorities in  the  fifty-odd  counties  could  pass  upon  more  intelli- 
gently than  legislators  resident  in  a  section  of  the  State  perhaps 
seven  hundred  miles  away.  Accordingly  there  was  submitted 
to  the  people  a  proposition  for  limited  constitutional  home  rule 
for  counties,  which  made  it  possible  for  the  local  constituency 
to  decide  upon  the  structure  or  form  of  their  own  government 
and  to  control  the  county  officers  as  they  saw  fit.  The  amend- 
ment was  adopted  in  October,  1911.  It  provides  that  upon  the 
petition  of  fifteen  per  cent  of  the  electors,  or  on  the  initiative  of 


345 

the  board  of  supervisors,  an  election  of  a  board  of  fifteen  free- 
holders is  held.  The  freeholders  draft  the  charter,  after  which 
it  is  submitted  to  the  people  for  ratification  or  rejection.  If 
ratified  it  is  then  presented  to  the  Legislature  for  confirmation 
or  rejection.  The  charter  framers  of  Los  Angeles  County  were 
quick  to  take  advantage  of  this  amendment,  and  in  1912  a  new 
charter  for  that  county  was  adopted,  ratified  and  confirmed. 
Under  that  charter  only  three  officers  were  left  elective,  — 
sheriff,  district  attorney  and  assessor,  —  and  the  rest  were  taken 
out  of  the  elective  list  because  it  was  considered  that  their 
duties  were  chiefly  or  entirely  ministerial  or  clerical.  Further- 
more, the  board  of  supervisors  control,  through  their  power  of 
appointment  and  removal,  the  principal  county  officials. 

Another  plan  in  California  is  found  in  Alameda  County, 
where  there  was  a  local  division  of  sentiment  between  the  rural 
and  urban  population  as  to  consolidation  or  annexation.  In 
order  to  get  rid,  however,  of  their  duplicate  oSicers  and  conflict 
of  authority,  a  system  of  federation  was  devised  whereby  the 
county  board  as  a  separate  and  distinct  body  was  abolished 
and  was  recomposed  of  mayors  and,  in  case  of  the  largest  cities, 
of  additional  designated  members  of  the  City  Councils  and  of 
representatives  from  towns  and  from  the  three  districts  into 
which  the  rural  part  of  the  county  was  divided. 

San  Bernardino  County  in  California,  as  w^ell  as  Denver, 
Colorado,  have  adopted  forms  of  government  which  give  more 
local  autonomy  to  these  counties,  and  Maryland  in  1914  passed 
a  constitutional  amendment  permitting  home  rule  in  the  city 
and  county  of  Baltimore. 

Note.  • —  In  addition  to  the  tables  printed  in  the  Appendix, 
synoptical  tables  exhibiting  the  framework  of  county  government 
in  several  typical  States  were  prepared.  These  are  too  volu- 
minous for  publication  and  are  deposited  in  the  State  Library  of 
Massachusetts. 


346 


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348 


Salaries  of  County  Officials,  1916. 


Clerk  of  Courts, 

Clerk 

Assistant  Clerk, 

Second  Assistant, 

Third  Assistant, 

Fourth  Assistant, 

Clerical  Assistance  to  Clerks  of  Courts,    . 

Treasurer, 

Sheriff, 

County  Commissioners  (each), 

Court  Stenographers  (each). 

Register  of  Deeds 

Northern 

Southern, 

Middle 

Assistant  Register  of  Deeds, 

Northern 

Southern, 

Middle, 

Clerical  Assistance  to  Register  of  Deeds,  . 

Northern, 

Southern, 

Middle 

Register  of  Probate, 

Assistant  Register  of  Probate,  . 
Second  Assistant  Register, 
Third  Assistant  Register, 

Clerical  Assistance  to  Register  of  Probate, 
Judge  of  Probate, 


Suffolk. 


Supreme. 


$6,500 
3,500 


19,785 


Civil. 


$6,000 

5,000 

(2)  3,000 

(9)  2,800 

56,990 


800 
3,000 


(12)  2,500 
5,000 


3,000 
2,400 


52,420 


6,000 
3,000 
3,000 

8,4261 

27,789* 

7,000 

7,000 


Crimi- 
nal. 


$6,000 
3,000 
3,000 


61,919 


$6,000 

3,500 
2,500 
2,500 
2,000 
11,346 
3,500 
3,000 
2,000 
2,500 
2,400 
1,500 

2,300 
5,000 


2,500 


$5,200 

2,600 
2,000 
2,000 

6,967 
3,000 
3,000 
2,000 
2,500 
2,500 


2,275 
4,900 


1,137 
2,450 


15,373 

8,868 

70,163 

19,219 

5,000 

3,500 

3,000 

2,300 

2,500 

1,800 

2,000 

- 

9,605' 

7,280' 

5,0302 

607  » 

6,000 

4,000 

6,000 

4,000 

»  Paid  by  State. 


»  Paid  by  County. 


349 


Salaries  of  County  Officials,  1916  —  Continued. 


a 

a 
0. 

W 

"3 
o 

a 

S4,000 

$3,500 

2,400 

1,500 

4,292 

1,600 

2,250 

2,000 

2,500 

1,800 

1,500 

1,200 

4,100 

3,500 

2,050 

2,000 

11,185 

7,113 

3,400 

2,400 

1,700 

1,200 

3,149' 

1,148' 

4,100 

2,900 

- 

- 

Clerk  of  Courts 

Clerk 

Assistant  Clerk, 

Second  Assistant,         .... 

Third  Assistant, 

Fourth  Assistant 

Clerical  Assistance  to  Clerks  of  Courts, 

Treasurer 

Sheriff 

County  Commissioners  (each),  . 
Court  Stenographers  (each). 
Register  of  Deeds 

Northern, 

Southern, 

Middle 

Assistant  Register  of  Deeds, 

Northern, 

Southern, 

Middle 

Clerical  Assistance  to  Register  of  Deeds, 

Northern, 

Southern,  ..... 

Middle 

Register  of  Probate 

Assistant  Register  of  Probate,    . 

Second  Assistant  Register, 

Third  Assistant  Register,    . 

Clerical  Assistance  to  Register  of  Probate, 


$5,200 

2,500 
2,000 
2,000 


6,814 
2,500 
2,500 
1,800 
2,500 


2,300 
5,000 


1,100 


3,739 
22,547 


Judge  of  Probate, 


3,500 
2,300 
1,200 

6,S30: 
4,500 
4,500 


$5,200 


2,800 


2,575 
2,500 
3,000 
1,800 


2,400 
2,800 
2,5002 

1,200 
1,400 
1,250 

3,724 
5,221 
3,610 
3,500 
2,300 


4,026' 
4,500 


$3,500 


2,500 


3,089 
2,000 
2,200 
1,400 

4,300 


23,701 


2,800 
1,650 


3,594' 
5,000 


'  Worcester  District. 


«  Fall  River  District. 


»  Paid  by  State. 


350 


Salaries  of  County  Officials,  1916  —  Concluded. 


Clerk  of  Courts, 

Clerk 

Assistant  Clerk,      ..... 

Second  Assistant 

Third  Assistant, 

Fourth  Assistant,   ..... 
Clerical  Assistance  to  Clerks  of  Courts, 

Treasurer 

Sheriff 

County  Commissioners  (each), 

Court  Stenographers  (each), 

Register  of  Deeds,  .... 

Northern, 

Southern,     ...... 

Middle 

Assistant  Register  of  Deeds, 

Northern 

Southern 

Middle 

Clerical  Assistance  to  Register  of  Deeds, 

Northern 

Southern 

Middle 

Register  of  Probate,        .... 
Assistant  Register  of  Probate, 
Second  Assistant  Register,     . 
Third  Assistant  Register, 

Clerical  Assistance  to  Register  of  Probate, 
Judge  of  Probate,   ..... 


$2,700 


1,820 
1,500 
2,000 
1,000 


1,625 

711 

2,275 


648 

644 

1,620 

1,900 

1,200 


9002 
2,500 


400      $2,000 


1,495 

1,100 

1,500 

733 

2,200 


2,305 


1,600 
800 


600  2 
1503 


2,6471 

800 

1,250 

1,600 

2,100 


1,050 


1,600 
800 


339 


$1,600 


685 

500 

1,000 

1,650 

2,200 


1,600 
800 


5262 
1,800 


300 


600 


1,000 


18' 
1,300 


S600 


300 
300 
400 

600 


1,000 


292  « 
1,300 


1  Clerical  for  County  Offices. 


2  Paid  by  State. 


'  Paid  by  County. 


351 


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BIBLIOGRAPHY. 

American  Year  Book,  1910-1915. 

Reed,  A.  Z.  The  Territorial  Bass  of  Government  under  the  State  Con- 
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County  Commissioners.  Printed  by  direction  of  Levi  S.  Gould,  Charles 
H.  Richardson,  and  Chester  B.  Williams,  Middlesex  County  Com- 
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Fairlie,  J.  A.  "County  Government,"  Cyclopedia  of  American  Govern- 
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McQuillan,  E.    Treatise  on  the  Law  of  Municipal  Corporations,  I,  428-488. 

Hormel,  0.  C.  "Boston's  County  Problems,"  Annals  of  the  American 
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Taylor,  G.    "The  County,"  Survey,  XXXII,  240  (May  30,  1914). 

Harpin,  F.  H.  "County  Administration  of  School  Affairs  in  its  Relation 
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Updyke,  F.  A.  "County  Legislation,"  American  Political  Science  Re- 
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Saxe,  M.  "A  Plea  for  the  County  Plan  of  Tax  Administration  in  New 
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Dyer,  W.  A.  "Putting  Character  into  the  Counties,"  World's  Work, 
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Crandall,  C.  A.  "The  Relations  of  Cities  and  Counties  to  the  State," 
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King,  C.  L.  "Report  of  the  City  County  Committee  of  the  American 
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Gilbertson,  H.  S.  "Running  States  and  Counties  on  Business  Lines," 
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"Commission  Government  and  Paid  Managers  for  Counties,"  Sur- 
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"Movement  for  Responsible  County  Government,"  Annals  of  the 

American  Academy,  LXIV,  116  (March,  1916). 

"The  Discovery  of  the  County  Problem,"   Review  of   Reviews, 

XLVI,  604  (November,  1912). 

Hinckley,  T.  L.  "Significance  and  Character  of  Reform  for  Counties," 
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Buck,  G.  S.  "The  Organization  of  County  Government,"  Academy  of 
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353 

Childs,  R.  S.    "Program  for  County  Government  Reform,"  The  American 

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Jones,  C.  L.    "The  County  in  Politics,"  Annals  of  the  American  Academy, 

XL VII,  85  (May,  1913). 
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"A  Program  for  Rebuilding  the  County,"  Survey,  XXXVI,  616  (Septem- 
ber 23,  1916). 
"To  Study  the  County.     Civic  Leaders  in  New  York  State  exchange 

Facts  and  Ideas  in  Neglected  Problems,"  Short  Ballot  Bulletin,  II, 

7  (December,  1913). 
"County  Charters  in  California,"  Short  Ballot  Bulletin,  III,  7  (October, 

1915). 
"County  Government  and  the  [New  York]  Constitution,"  Short  Ballot 

Bulletin,  II,  6  (August,  1914). 
"What  County  Government  looks  like  in  Milwaukee  Diagram,"  Short 

Ballot  Bulletin,  II,  6  (December,  1914). 
"A  County  Manager,"  Short  Ballot  Bulletin,  II,  3  (April,  1913). 
"Conference  for  Better  Government,"  Equity,  XVI,  208  (October,  1914). 
"County  Manager  Charter  Defeated"  (Napa,  Cal.),  Municipal  Journal, 

XLII,  383  (March  18,  1917). 
"Notable  County  Efficiency"  (Hamilton  Co.,  Indiana),  Journal  of  Edu- 
cation, LXXDC,  263  (March  5,  1914). 
"Program  for  Rebuilding  the  County,"  Survey,  XXXVI,  616  (September 

23,  1916). 
"A  County  Commission  Government,"  World's  Work,  XXVI,  274  (July, 

1913). 
"To  Vote  on  Commission  Government  for  County"   (Kane  Co.,  111.), 

Municipal  Journal,  XLI,  816  (December  28,  1916). 
"Better  County  Government,"  Equity,  XVII,  78  (January,  1915). 
"Consolidation  of  City  and  County  Govenmient"  (Sacramento,  Cal.), 

American  City,  XII,  243  (March,  1915). 


BULLETIN   No.   9 


BIENNIAL    ELECTIONS    AND   LEGIS 
LATIVE    SESSIONS 


CONTENTS. 


PAGE 

I.     Biennial  Elections, 359 

II.    The  Interval  between  Legislative  Sessions,        ....  362 

III.  Reasons  for  the  Abandonment  of  Annual  Elections  or  Sessions,  365 

IV.  Effects  of  Biennial  Elections  and  Sessions,         ....  368 

1.  The  Reelection  of  Legislators, 368 

2.  Extra  or  Special  Sessions, 369 

V.    Opinions  of  Officers  of  States  having  Biennial  Elections  or 

Sessions, 370 

VI.    The  Quadrennial  System  of  Alabama, 373 

VII.    The  Agitation  for  Biennial  Elections  and  Sessions  in  Massa- 
chusetts,        377 

1.  Action  in  the  Legislature, 377 

2.  Attitude  of  Governors  of  Massachusetts,          .       .       .  380 

3.  The  Forces  for  and  against  Biennials,        ....  382 

Appendix  A.  —  Table  showing  Membership,  Term  of  Legislature, 

Term  of  Governor,  Frequency  of  Sessions  and  Limit  of  Sessions,  385 

Appendix  B.  —  Previous  Legislative  Experience  of  Members  of  the 

Legislature  of  Massachusetts, 386 

Appendix  C.  —  Massachusetts  Biennial  Amendment,        .       .       .389 

Bibliography, 390 


BIENNIAL   ELECTIONS  AND   LEGISLATIVE 

SESSIONS. 


I.     Biennial  Elections. 

In  all  the  American  constitutions,  both  State  and  Federal,  it 
is  provided  that  elections  shall  be  held  at  stated  intervals  and 
elected  officers  shall  be  chosen  for  fixed  and  definite  terms. 
In  this  respect  the  government  of  the  United  States  differs 
from  that  of  Great  Britain  and  the  British  Dominions,  where 
the  tenure  of  the  ministry  depends  upon  the  retention  of  the 
confidence  of  Parliament  which  itself  is  chosen  at  irregular 
intervals.  Some  of  the  constitutions  adopted  early  in  the 
Revolution  emphasize  the  importance  of  regular  elections  as  a 
means  of  protecting  the  people  against  oppression.  Pennsyl- 
vania in  her  Constitution  of  1776  said: 

That  those  who  are  employed  in  the  legislative  and  executive  business 
of  the  State,  may  be  restrained  from  oppression,  the  people  have  a  right, 
at  such  periods  as  they  may  think  proper,  to  reduce  their  pubUc  officers 
to  a  private  station,  and  supply  the  vacancies  by  certain  and  regular 
elections. 

The  next  year  this  section  of  the  Constitution  of  Pennsylvania 
was  adopted  verbatim  by  the  people  of  Vermont.  The  same 
principle  was  stated  in  the  Massachusetts  Constitution  of  1780 
in  these  words: 

In  order  to  prevent  those  who  are  vested  with  authority  from  becoming 
oppressors,  the  people  have  a  right,  at  such  periods  and  in  such  manner 
as  they  shall  establish  bj^  their  frame  of  government,  to  cause  their  public 
officers  to  return  to  private  life;  and  to  fill  up  vacant  places  by  certain 
and  regular  elections  and  appointments. 

While  the  instruments  of  government  adopted  in  1776  and 
the   years   following    by   Pennsylvania,   Vermont    and    Massa- 

NoTE. —  This  edition  of  Bulletin  No.  9  is  a  revision  of  the  original  edition,  and 
also  incorporates  the  important  parts  of  Convention  Document  No.  355. 


360 

chusetts  lay  stress  upon  the  holding  of  elections  at  regular 
intervals,  they  say  nothing  as  to  the  length  of  the  interval. 
But  in  the  Bill  of  Rights  adopted  by  Virginia  in  1776,  it  was 
said  that  elections  should  be  "frequent,  certain,  and  regular," 
while  Maryland  said  that  they  should  be  "free  and  frequent" 
and  North  Carolina  declared  that  "elections  ought  to  be  often 
held." 

In  these  statements  of  principle  no  attempt  is  made  to 
define  the  term  "frequent."  In  practice,  however,  all  of  the 
original  thirteen  States  except  South  Carolina  followed  the 
colonial  habit  of  annual  elections,  and  this  rule  was  also 
adopted  by  Vermont  upon  its  a'dmission  to  the  Union  in  1791, 
and  by  Kentucky  in  1793.  But  when  Tennessee  became  a 
State  in  1796,  it  followed  the  example  of  South  Carolina  and 
adopted  biennial  elections.  The  tendency  in  the  older  States 
to  continue  the  practice  of  colonial  days  was  doubtless  strength- 
ened by  John  Adams'  much  quoted  letter  of  1776  in  which  he 
said  : 

That  the  representatives  may  often  mix  with  their .  constituents  and 
frequently  render  them  an  account  of  their  stewardship,  elections  ought 
to  be  frequent.  .  .  .  These  elections  may  be  septennial  or  triennial;  but, 
for  my  own  part,  I  think  they  ought  to  be  annual;  for  there  is  not  in  aU 
science  a  maxim  more  infallible  than  this,  where  annual  elections  end, 
there  slavery  begins.^ 

It  is  interesting  to  note  that  when  he  wTote  this  letter,  John 
Adams  apparently  did  not  think  of  biennial  elections  as  a 
possibility.  If  elections  were  not  annual  they  must  be  either 
triennial  or  septennial.  The  letter  is  also  a  good  example  of 
the  exaggerated  rhetoric  of  Revolutionary  days.  Whether 
the  forty-five  States  which  have  abandoned  annual  elections 
have  done  wisely  or  not,  they  are  obviously  not  in  a  condition 
of  slavery. 

About  1830  the  States  which  had  annual  elections  began  to 
shift.  Of  the  original  thirteen,  where  it  might  be  assumed 
that  the  annual  system  was  more  firmly  rooted  than  in  the 
newer  States,  Delaware  abandoned  annuals  in  1831,  North 
Carolina  in  1835,  Georgia  in  1840,  Virginia  in  1850,  Pennsyl- 
vania in  1873,  New  Hampshire  in  1877,  Maine  in  1880,  Con- 

1  Works  of  John  Adams,  IV,  205. 


361 

necticut  in  1884,  and  Rhode  Island  in  1911.  To  this  list  should 
be  added  Vermont,  which  adopted  biennial  elections  in  1870. 

The  States  which  have  adopted  a  longer  term  than  one 
year  for  membership  in  the  lower  house  have  invariably 
adopted  a  two-year  term  except  Louisiana  (1879),  Mississippi 
(1890),  and  Alabama  (1901),  all  of  which  choose  the  members 
of  both  branches  for  terms  of  four  years.  Texas  in  1868 
provided  for  a  term  of  six  years  for  the  members  of  the  Senate, 
but  in  1876  this  was  reduced  to  four  years. 

Ex-Governor  Noel  of  Mississippi,  whose  public  career  extends 
over  more  than  a  generation,  makes  the  following  comment 
in  a  letter  to  the  writer  upon  the  change  from  biennial  to 
quadrennial  elections  in  Mississippi  in  1890: 

"WTien  the  proposition  to  change  State  and  county  officers'  terms  to 
four  years  was  first  agitated  in  1882,  the  proposition  was  defeated  in  the 
Senate  on  the  idea  that  equal  terms  for  Representatives  and  Senators 
was  violative  of  the  spirit  and  purposes  of  our  constitutions,  State  and 
National.  The  proposition  then  started  gained  such  force  that  the  Con- 
stitution of  1890  made  all  State  and  county  officers,  including  State 
Senators  and  Representatives,  elected  quadrennially. 

No  harm  whatever  has  resulted  from  the  change.  I  have  never  heard 
a  complaint  since  the  change  was  made.  At  first  the  second  session  of 
the  Legislature  was  restricted  to  revenue  and  appropriation  biUs  and 
such  other  matters  as  the  Governor  might  by  special  message  submit. 
By  constitutional  amendment  this  restriction  was  aboUshed  to  the  general 
satisfaction  of  the  people. 

Annual  sessions  of  the  Legislature  were  had  in  Mississippi  soon  after 
the  Civil  War,  I  think.  According  to  my  experience  and  observation, 
quadrennial  elections  for  all  State  and  county  offices  is  a  decided  advan- 
tage over  annual  or  biennial  elections.  Besides  the  constant  turmoil  from 
frequent  elections,  and  the  loss  of  popular  interest,  it  keeps  the  officers 
constantly  canvassing  and  tends  to  distract  attention  from  official  duties. 

The  following  table  indicates  the  terms  for  which  the  mem- 
bers of  the  two  houses  are  chosen  in  the  several  States: 


Senate  for  four  years. 
Senate  for  three  years, 
Senate  for  two  years. 
Senate  for  one  J'ear, 
House  for  four  years. 
House  for  two  years. 
House  for  one  year, 


31  States. 

1  (New  Jersey). 
15  States. 

1  (Massachusetts). 

3  (Alabama,  Louisiana,  Mississippi). 
42  States. 

3  (Massachusetts,  New  York,  New 
Jersey) . 


362 

Three  States  elect  both  the  Senate  and  the  House  for  a 
four-year  term,  —  Alabama,  Louisiana,  and  Mississippi.  New 
Jersey  has  a  three-j'^ear  term  for  the  Senate  and  a  one-year 
term  for  the  House.  Massachusetts  alone  elects  the  Senate 
annually,  and  only  Massachusetts,  New  York  and  New  Jersey 
elect  the  House  annually.^ 

II.    The  Interval  between  Legislative  Sessions. 

The  interval  between  legislative  elections  has  no  necessary 
connection  with  the  interval  between  sessions  except,  of  course, 
that  the  latter  cannot  be  longer  than  the  former.  In  most 
discussions  of  the  subject  of  biennials,  however,  no  distinction 
is  made  between  the  two,  although  in  practice  the  two  periods 
have  frequently  differed,  and  the  considerations  which  apply 
to  one  do  not  necessarily  apply  to  the  other.  The  distinction 
was  well  marked  in  the  Declaration  of  Independence  where 
George  III  was  indicted  for  his  failure  to  cause  sessions  of 
the  colonial  legislatures  to  be  held  at  frequent  intervals  rather 
than  for  any  failure  to  allow  public  sentiment  to  be  expressed 
in  new  elections.  In  the  colony  of  Massachusetts  Bay  the 
General  Court  met  at  first  four  times  each  year.  This  proved 
so  inconvenient  that  the  number  of  sessions  was  reduced  to  two 
each  year,  and  this  continued  until  1831,  when  the  present 
system  of  annual  sessions  was  established.  In  Connecticut 
as  many  as  seven  sessions  were  held  in  a  single  year,  but  here, 
as  in  Massachusetts,  the  practice  came  to  be  two  regular 
sessions  each  j^ear,  and  this  continued  until  the  adoption 
of  the  Constitution  of  1818,  when  annual  sessions  were  made 
the  rule.  In  no  State  have  so  many  legislative  sessions  been 
held  in  so  short  a  space  of  time  as  in  New  Hampshire.  In 
1776  the  Legislature  met  seven  times;  in  1777,  six  times;  in 
1778,  five  times;  in  1779,  four  times;  in  1780,  1781,  and  1782, 
five  times  in  each  year.  In  a  single  decade  beginning  in  1776, 
the  Legislature  met  forty-seven  times.  In  New  Jersey  the 
Legislature  held  seven  sessions  in  1777  and  five  in  1778,  while 
two  sessions  annually  were  the  rule  until  1843.  In  Pennsylvania 
from  1776  to  1793  the  Legislature  usually  met  three  times  a 
year,  in  1794  it  met  twice,  and  from  1795  to  1883  regular 
annual  sessions  were  held. 

>  For  a  detailed  tabulation  for  each  State,  see  Appendix  A.  Since  the  above  statement  was 
prepared,  Massachusetts  has  adopted  biennial  elections. 


363 

In  Rhode  Island  sessions  of  the  Legislature,  like  the  publica- 
tion of  Elbert  Hubbard's  Philistine,  occurred  "every  little 
while."  Like  an  uneasy  spirit  the  General  Assembly  wandered 
from  town  to  town  as  though  seeking  an  abiding-place.  For 
instance,  in  January,  1821,  it  met  at  Providence.  In  February 
it  shifted  to  East  Greenwich.  In  May  and  June  it  held  two 
sessions  in  Newport  and  rounded  out  the  legislative  year  with 
a  fifth  session  in  South  Kingstown.  Until  1854  there  were 
usually  four  sessions  in  each  year,  but  the  constitutional 
amendment  of  that  year  reduced  the  number  to  two,  where  it 
continued  until  another  amendment  adopted  in  1900  reduced  the 
number  to  one.  It  is  difficult,  however,  to  break  old  habits, 
and  since  1900  four  adjourned  or  special  sessions  have  been  held. 

Without  following  the  question  in  detail  in  all  the  States, 
it  may  be  said  that  down  to  the  close  of  the  Revolution  every 
State  had  at  least  two  and  generally  more  than  tw^o  sessions 
each  year.  About  1790  a  marked  tendency  shows  itself  to 
reduce  the  number  of  regular  sessions  to  one  in  each  year,  and 
that  practice  was  soon  adopted  in  New  York,  Pennsylvania, 
Maryland,  North  Carolina,  South  Carolina  and  Georgia. 
New  Hampshire  clung  to  semi-annual  sessions  until  1813, 
Connecticut  until  1818,  and  Rhode  Island  until  1900. 

From  this  rehearsal  it  is  apparent  that  there  has  been  a 
steady  reduction  in  the  number  of  legislative  sessions.  From 
five  and  six  or  more  in  a  year  the  number  was  first  reduced 
to  two.  Then  it  was  made  one  session  per  year.  In  1796 
Tennessee  adopted  what  has  come  to  be  the  rule  in  forty 
States,  —  that  is,  one  regular  session  in  two  years.  In  1890 
Mississippi  provided  for  one  regular  session  in  four  years  with 
an  intervening  "special"  session  midway  between,  which  was 
allowed  to  consider  only  financial  legislation  and  such  measures 
as  the  Governor  might  lay  before  it.  This  system  was  aban- 
doned in  1910  when  an  amendment  was  adopted  which 
aboHshed  the  "special"  session  and  substituted  for  it  a  regular 
session  unlimited  as  to  length  or  as  to  the  subjects  which  it 
may  consider.  Mississippi,  therefore,  now  has  regular  biennial 
sessions.  In  1901  Alabama  adopted  a  quadrennial  session 
limited  to  fifty  days.  No  other  State  has  adopted  a  similar 
provision. 


364 

In  several  States  in  the  Union  many  persons  have  recently 
advocated  that  there  should  be  a  substantial  reduction  in  the 
membership  of  the  Legislature,  and  that  the  smaller  body  should 
then  remain  in  practically  continuous  session.  It  is  argued  that 
it  is  impossible  to  draft  laws  which  will  not  be  in  need  of  fre- 
quent amendment,  and  that  whenever  defects  are  discovered  or 
unforeseen  situations  arise  the  law  should  be  promptly  changed. 
City  councils  are  cited  as  examples  of  legislative  bodies  meeting 
at  such  short  intervals  that  their  sessions  are  practically  con- 
tinuous. This  plan  has  not  yet  been  adopted  for  the  Legisla- 
ture of  any  State. 

The  following  table  indicates  the  practice  of  the  several 
States  as  to  the  interval  between  sessions  and  the  limitations 
upon  the  length  of  sessions: 

Frequency  of  Sessions. 

Quadrennial, 1  (Alabama). 

Biennial,  41  States. 

Annual, 6  (Georgia,     Massachusetts,     New 

Jersey,  New  York,  Rhode  Island, 
South  Carolina). 

Limits  placed  upon  the  Length  of  Session. 

None 14  States. 

40  days, 3  (Oregon,    South    Carolina,   "Wyo- 
ming). 

45  days, 1  (West  Virginia). 

50  days, 3  (Alabama,  Georgia,  Kansas). 

60  days, 20  States. 

61  days, 1  (Indiana). 

70  daj's, 1  (Missouri). 

75  days,    .       .       .       .       .       .1  (Tennessee). 

90  days, 3  (Colorado,  Maryland,  Minnesota). 

5  months, 1  (Connecticut). 

From  this  tabulation  it  appears  that  the  sessions  of  the 
Legislature  are  limited  in  most  States  to  a  period  of  from  forty 
to  ninety  days,  with  nearly  one-half  set  at  sixty  days.  Cali- 
fornia is  using  the  bifurcated  session  of  thirty  days  for  the 
introduction  and  discussion  of  bills,  thirty  days'  recess  for  the 


365 

members  to  discuss  the  bills  with  their  constituents,  and  an 
unlimited  session  for  the  debate  and  passage  of  approved 
measures.^ 


III.    Reasons  for  the  Abandonment  of  Annual  Elections 

OR  Sessions. 

Few  movements  in  American  politics  have  been  more  pro- 
nounced or  more  steadily  persistent  in  one  direction  than  has 
been  the  general  abandonment  of  annual  elections  and  annual 
sessions.  While  in  some  instances  local  causes  may  have  been 
contributory,  it  is  obvious  that  so  widespread  a  movement 
can  only  be  explained  by  causes  as  widespread  as  the  results. 
Among  the  reasons  that  have  been  given  for  the  change  are 
the  following: 

1.  The  second  quarter  of  the  nineteenth  century  —  the 
period  in  which  the  movement  made  the  greatest  headway  — 
was  marked  by  the  development  of  a  general  distrust  of  legis- 
lative bodies.  Every  State  had  its  tale  of  corrupt  grants  of 
franchises  contrary  to  the  public  interest,  of  extravagance  in 
the  appropriation  of  public  money,  and  of  a  reckless  use  of  the 
borrowing  power.  Many  States  are  still  burdened  by  the 
public  debts  contracted  at  that  time.  In  consequence  of  this 
experience  the  people  imposed  extensive  restrictions  upon  the 
authority  of  their  legislative  bodies,  limited  both  the  duration 
and  number  of  their  sessions  and  lengthened  their  term. 

2.  The  fear  of  long  terms,  which  had  formerly  been  felt  as 
to  both  legislative  and  executive  officers,  gradually  diminished, 
while  the  advantage  of  a  term  of  sufficient  length  to  permit 
some  degree  of  continuity  of  policy  became  more  apparent. 
The  political  philosophy  of  the  Revolutionary  period  was  built 
upon  the  assumption  that  an  officer  would  abuse  any  authority 
with  which  he  might  be  vested,  and  hence  his  term  must  be  so 
short  that  he  could  have  no  opportunity  to  entrench  himself 
in  power.  Experience,  however,  has  led  to  the  conviction  that 
political  morality  has  no  particular  connection  with  the  calen- 
dar, while  elections  recurring  in  annual  cycles  impede  the 
development  of  any  continuous  policy,  and,  through  their 
demand  for  constant  political  activity,  encourage  the  forma- 

1  For  a  detailed  tabulation  for  each  State,  sea  Appendix  A.       , 


366 

tion  of  a  class  who  make  a  profession  of  politics.     This  view- 
point was  well  expressed  by  Senator  Lodge  in  these  words: 

Frequency  of  elections  tends  to  keep  the  great  body  of  our  people  out 
of  politics  about  half  the  time,  and,  of  course,  tends  also  to  throw  the 
conduct  of  politics  into  the  hands  of  men  who  live  by  them  and  take  part 
in  them  in  order  to  make  a  living. 

3.  It  was  also  argued  that  annual  elections  were  so  great 
a  burden  on  the  voters  that  it  was  becoming  increasingly 
difficult  to  obtain  a  full  expression  of  public  opinion.  It  has 
long  been  recognized  among  students  of  government  that  no 
country  in  the  world  exacts  so  much  from  its  electorate  as  does 
the  United  States.  The  number  of  elective  officers  —  Federal, 
State,  and  local  —  is  so  great  and  the  interval  between  elections 
is  so  short  that  in  such  a  State  as  Massachusetts  the  voters 
are  hardly  free  from  one  contest  before  they  are  involved  in 
another.  Since  the  institution  of  direct  primaries  the  burden 
upon  the  voter  has  been  increased.  Human  nature  being 
what  it  is,  it  is  not  surprising  that  in  many  of  these  contests 
large  numbers  of  voters  fail  to  go  to  the  polls.  This  may 
easily  result  in  the  habitual  determination  of  governmental 
policies  by  a  minority  of  the  electorate,  and  it  has  therefore 
been  argued  that  a  relatively  full  expression  of  public  opinion 
biennially  is  better  than  a  partial  expression  of  public  opinion 
annually.  The  following  table  may  be  useful  in  judging  of 
the  weight  of  this  argument: 


367 


Male 
Citizens 

of  21 
Years  and 

Over, 
Federal 
Census, 

1910. 

Votes 

CAST  FOR  Governor. 

State. 

1910. 

1912. 

1914. 

1916. 

Total 
Vote. 

Per 
Cent. 

Total 
Vote. 

Per 
Cent. 

Total 
Vote. 

Per 
Cent. 

Total 
Vote. 

Per 
Cent. 

Connecticut,     . 

254,597 

166,181 

65.2 

190,394 

74.8 

181,107 

71.1 

213,807 

83.9 

Indiana,    . 

775,688 

615,591' 

79.3 

641,121 

82.6 

627.3611 

80.8 

706,627 

91.0 

Iowa, 

607,050 

412,964 

68.2 

461,206 

75.9 

422,579 

69.6 

513,848 

84.6 

Maine, 

201,861 

141,564 

70.1 

141,940 

70.3 

141,666 

70.1 

150,8432 

74.7 

Massachusetts, . 

754,547 

440,831 

58.4 

475,792 

63.0 

458,204 

60.7 

528,337 

70.0 

Michigan, 

733,615 

383,762 

52.3 

548,921 

74.8 

440,448 

60.0 

651,518 

88.8 

New  Hampshire, 

111,052 

84,167 

75.7 

83,278 

74.9 

84,108 

75.7 

86,242 

77.6 

Ohio, 

1,317,652 

924,463 

70.1 

1,036,731 

78.6 

1,129,223 

85.6 

1,171,4582 

88.8 

Pennsylvania,  . 

1,814,086 

998,448 

55.0 

1,118,800' 

61.6 

1,111,252 

61.2 

1,219,3161 

67.2 

Rhode  Island,  . 

119,620 

67,622 

56.5 

78,176 

65.3 

78,023 

65.2 

88,568 

74.0 

Vermont,  . 

100,540 

54,787 

54.4 

64,812 

64.4 

62,092 

61.7 

60,854 

60.5 

Wisconsin, 

554,534 

319,162 

57.5 

393,651 

70.9 

325,559 

58.7 

432,435 

77.9 

1  Vote  for  State  Treasurer. 


2  Unofficial. 


It  should  be  noted  that  in  the  above  table  the  number  of 
male  citizens  who  have  attained  their  majority  is  taken  as  the 
basis  of  calculation,  but  in  Massachusetts  the  existence  of  a 
literacy  test  reduces  the  number  of  potential  voters.  It  should 
also  be  observed  that  in  the  elections  tabulated  above,  Federal 
as  well  as  State  officers  were  chosen.  How  far  this  affects 
the  total  vote  may  perhaps  appear  from  the  fact  that  the 
total  vote  for  Governor  of  Massachusetts  in  1911,  1913,  1915, 
and  1917  was  respectively  440,020,  460,873,  502,146,  and 
387,927. 

4.  The  cost  of  elections  is  no  inconsiderable  part  of  the 
financial  burden  which  taxpayers  are  obliged  to  bear.  This 
item  of  governmental  expense  has  been  much  increased  in 
recent  years  by  the  institution  of  direct  primaries  which  require 
the  same  sort  of  machinery  as  is  required  by  an  election. 
States  which  choose  their  legislators  and  other  officers  bienni- 
ally of  course  incur  only  half  the  expense  which  annual  elec- 
tions would  involve.  How  important  this  consideration  is  ap- 
pears from  the  following  tabulation  of  the  cost  of  electing 
the  members  of  the  General  Court  and  other  State  officers  in 


368 

Massachusetts  in  1915,  the  last  year  for  which  complete  data 
are  now  available.^ 

Election  expenses  incurred  by  the  Secretary  of  the  Commonwealth: 

Primary  elections, 135,422  44 

Ballots  for  elections,         .       .       .       .  ■    .         6,387  86 
Blank  forms  for  town  officers,        .       .        .         5,698  32 

Ballot  boxes, 1,804  20 

S49,312  82 

Registration  and  election  expenses  incurred  by  the  cities  and 
towns : 

Expenses  of  35  cities, $369,916  63 

Expenses  of  318  towns  (estimated),       .       .      151,137  65 

— 521,054  28 

Total, $570,367  10 

In  addition  to  the  expenses  directly  borne  b}^  taxpayers, 
returns  filed  in  the  office  of  the  Secretary  of  the  Commonwealth 
show  that  candidates  expended  $84,958.34,  and  that  political 
committees  expended  $342,362.30.  As  many  candidates  do 
not  file  returns,  the  sums  here  given  are  less  than  the  actual 
expenditure.  It  is  clear,  however,  that  an  election  in  Massa- 
chusetts involves  an  expenditure  on  the  part  of  the  Common- 
wealth and  its  subdivisions  and  by  candidates  and  political 
committees  amounting  to  more  than  a  million  dollars.  In 
many  States  it  is  argued  that  the  benefits  which  accrue  from 
annual  elections  are  not  sufficient  to  justify  their  cost. 

IV.  Effects  of  Biennial  Elections  and  Sessions. 
1.  The  Reelection  of  Legislators. 
Advocates  of  annual  elections  frequently  urge  that  biennial 
elections  of  legislative  bodies  result  in  the  choice  of  a  much 
smaller  proportion  of  experienced  legislators  than  is  the  case 
in  Massachusetts.  It  is  undoubtedly  true  that  in  Massa- 
chusetts —  the  only  State  in  the  Union  which  renews  the  whole 

1  The  expenditures  of  the  Commonwealth  are  shown  in  Public  Document  No.  43  (1916).  The 
expenditures  of  the  cities  and  towns  have  been  tabulated  in  the  Bureau  of  Statistics  by  Mr. 
Theodore  N.  Wardell.  The  expenditures  of  the  cities  can  be  stated  exactly  from  returns  made 
to  the  Biu-eau  of  Statistics.  The  expenditures  of  the  towns  have  been  estimated  from  those  of 
a  considerable  number  of  typical  towns  for  which  exact  data  can  be  obtained.  In  view  of  the 
method  by  which  this  computation  was  made,  Mr.  Wardell  thinks  that  by  the  rule  of  averages 
the  result  is  approximately  correct.  < 


369 


body  of  its  Legislature  every  year  —  the  proportion  of  members 
who  have  served  in  a  like  capacity  before  is  much  larger  than 
in  any  other  State,  but  whether  this  is  a  case  of  cause  and 
ejBFect  is  indeterminable.^  States,  however,  which  choose  their 
law-making  bodies  biennially  are  not  lacking  in  experienced 
legislators.  In  the  ten  States  which  appear  in  the  following 
table  it  will  be  noted  that  in  general  about  one-third  the 
members  had  served  before.  Furthermore  it  must  also  be 
noted  that  almost  all  the  States  which  have  biennial  elections 
choose  their  Senators  for  a  term  of  four  years,  and  in  such 
cases  it  is  a  general  practice  to  elect  only  one-half  the  Senators 
at  one  time.  This  insures  a  Senate  at  each  session  at  least 
half  of  whose  members  have  had  previous  legislative  experience. 


Previous  Legislative  Experience  of  Legislators  in  Ten  States. 


Year. 

Total 
Mem- 
bership. 

Number  of  Phevious  Terms. 

Total 
Experi- 

State. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

enced 
Leg- 
islators. 

Connecticut,  . 
Illinois, 
Iowa,     . 
Maine,  . 
Missouri, 
Nebraska, 
Ohio,     . 
Pennsylvania, 
Vermont, 
West  Virginia, 

1917 
1913 
1915 
1915 
1915 
1913 
1915 
1916 
1917 
1915 

293 
204 
158 
182 
176 
133 
156 
257 
276 
116 

64 

45 

36 

54 » 

45 

34 

43 

53 

51 

26 

27 
27 
11 

16 
9 
6 

22 

6 

10 

11 

21 

3 

9 
3 
3 
9 
3 
3 

3 
9 
2 

5 

4 

1 
8 

1 

4 
1 

1 

2 
2 

2 

1 

1 

1 

106 
108 
52 
54 
75 
50 
53 
99 
61 
40 

2.  Extra  or  Special  Sessions. 
An  objection  often  raised  to  biennial  sessions  is  that  the 
period  intervening  between  sessions  is  so  long  as  to  necessitate 
many  special  sessions.  A  study  of  a  few  tjT)ical  States  for  a 
period  of  twenty  years  shows  so  little  uniformity  as  to  indicate 
that  there  is  slight  connection  between  biennial  sessions  and 
special  sessions.  Except  in  the  case  of  Illinois,  extra  sessions 
in  biennial  States  have  been  infrequent  and  of  short  duration. 

»  For  a  detailed  tabulation  of  the  previous  legislative  experience  of  members  of  the  Legislature 
of  Massachusetts,  see  Appendix  B. 

2  These  members  have  served  at  least  one  previous  term.  Many  of  them  have  served  more 
than  one. 


370 

Even  Alabama  has  had  but  two  extra  sessions  since  its  adop- 
tion of  the  quadrennial  system  in  1901.  On  the  other  hand, 
Rhode  Island  with  annual  sessions  has  had  four  special  sessions 
since  1901  and  Massachusetts  has  had  two  since  1900. 

Connecticut  —  Fall  of  1916,  one  day. 
New  Hampshire  —  December  3  to  6,  1890. 
Maine  —  March  to  April,  1912,  eighteen  days. 

September,  1916,  two  days. 
Vermont  —  1898,  less  than  a  week  (Spanish  War). 

1916,  less  than  a  week  (Mexican  trouble). 
Indiana  —  1908,  twelve  days. 
Pennsylvania  —  January  15  to  February  15,  1906. 
Ohio  —  August  25  to  October  22,  1902. 
January  4  to  March  12,  1909. 
January  10  to  February  16,  1914. 
July  20,  1914,  one  day. 
Illinois  —  October  8,  1907,  to  May  23,  1908, 

December  14,  1909,  to  March  2,  1910. 

June  11  to  November  14,  1911. 

March  26  to  June  5,  1912  (second  special). 

April  24  to  June  5,  1912  (third  special). 

November  22,  1915,  to  May  10,  1916. 

January  11  to  February  14,  1916  (second  special). 


V.    Opinions    of    Officers    of    States    having    Biennial 
Elections  or  Sessions. 

The  judgment  of  officials  as  to  the  working  of  political  insti- 
tutions with  which  they  have  been  in  contact  in  the  line  of 
official  duty  is  of  value,  but  their  views  are  likely  to  be  colored 
by  their  personal  predilections,  and  their  statements  of  opinion 
are  often  influenced  by  the  dominant  sentiment  of  the  com- 
munity. Statements  of  officials  from  a  considerable  number 
of  States  in  which  the  biennial  system  has  been  established 
are  here  submitted  for  whatever  light  they  may  throw  upon 
the  question. 

Hon.  Marcus  H.  Holcomb,  Governor  of  Connecticut:  "If 
any  one  should  venture  to  raise  the  question  of  a  return  to  the 
annual  election  and  session  of  the  legislature,  beyond  question 
there  would  be  almost  unanimity  of  sentiment  against  that 
change.     In  fact,  it  would  be  far  easier  to  change  from  a  bien- 


371 

nial  to  a  quadrennial  than  to  go  back  to  an  annual  election  of 
State  officers." 

Hon.  John  E.  Ramer,  Secretary  of  State  of  Colorado:  "As 
to  the  merits  or  demerits  of  the  biennial  elections  and 
biennial  sessions  of  the  Legislature,  one  frequently  hears 
the  remark  that  our  elections  occur  too  frequently  and  that 
we  are  burdened  with  too  many  elections,  but  this  senti- 
ment is  not  crystallized  to  such  an  extent  that  we  look 
for  any  change  in  the  present  system  for  at  least  some  time  to 
come." 

Hon.  Charles  R.  Miller,  Governor  of  Delaware:  "My  experi- 
ence has  satisfied  me  that  a  term  of  four  years,  [for  the  Gov- 
ernor] with  biennial  sessions  of  the  Legislature,  is  productive  of 
the  best  results.  By  this  method  a  Governor  has  the  opportu- 
nity to  become  acquainted  with  the  conditions  in  his  State  during 
the  first  two  years  he  is  in  office  and  with  a  session  of  the  Legis- 
lature occurring  midway  in  his  term  it  is  possible  for  him  to 
submit  to  the  representatives  of  the  people  the  information 
which  he  has  acquired  during  the  first  two  years  of  his  term, 
and  if  the  Legislature  adopts  his  ideas  he  has  two  years  of  his 
term  to  put  this  legislation  into  operation." 

Hon.  Park  Trammell,  Governor  of  Florida:  "I  beg  to  advise 
that  it  has  always  been  the  custom  in  this  State  as  well  as  the 
mandate  of  the  Constitution  that  the  Legislature  convene  every 
two  years.  This  system  I  believe  much  more  satisfactory  than 
having  annual  sessions.  We  have  never  had  any  of  our  officers 
elected  for  terms  of  less  than  two  years.  Up  to  last  year  about 
one-half  of  the  county  officers  were  elected  for  terms  of  two 
years  and  the  other  half  for  terms  of  four  years,  but  at  the 
general  election  in  1914  a  constitutional  amendment  requiring 
that  all  the  county  officers  be  elected  for  four  years,  except  the 
members  of  the  House  of  Representatives,  was  adopted.  We 
believe  that  the  longer  terms  promote  the  efficiency  of  the 
service  and  that  it  will  result  very  beneficially." 

Hon.  M.  Alexander,  Governor  of  Idaho:  "Biennial  elections, 
as  well  as  biennial  sessions  of  the  Legislature  appear  to  be 
sufficient  for  all  legislation  that  is  necessary.  In  fact,  usually 
more  legislation  is  enacted  even  in  a  biennial  period  than  there 
is  any  real  necessity  for." 


372 

Mr.  Finley  F.  Bell,  Secretary,  Legislative  Reference  Bureau, 
Illinois:  "Concerning  the  question  of  biennial  elections  and 
sessions  versus  annual  ones,  I  believe  the  consensus  of  opinion 
in  this  State,  at  the  present  time,  is  that  we  have  too  many 
elections  and  the  cost  of  same  is  reaching  a  point  where  some- 
thing will  have  to  be  done  to  curb  the  expense." 

Hon.  Oakley  C.  Curtis,  Governor  of  Maine:  "The  fact  that 
sentiment  in  a  majority  of  States  has  brought  about  changes 
from  annual  to  biennial  elections  is  the  best  evidence  of  the 
trend  of  public  opinion  in  favor  of  the  longer  term.  Frequency 
of  elections  and  consequent  changes  of  administration  seem  to 
me  to  handicap  good  government;  and  I  am  of  the  opinion 
that  annual  legislative  sessions  tend  toward  enactment  of  a 
multiplicity  of  useless  and  unwise  laws  with  which  the  statutes 
of  many  States  are  surfeited." 

Mr.  Henry  E.  Dunnack,  State  Librarian  of  Maine:  "The 
fact  that  no  attempt  has  ever  been  made,  since  1881,  to  change 
our  biennial  sessions  and  elections  to  annual,  may  be  of  interest 
to  you." 

Hon.  Woodbridge  M.  Ferris,  Governor  of  Michigan:  "I  can't 
imagine  an  argument  for  annual  elections  and  annual  sessions  of 
the  Legislature.  In  my  judgment  every  Governor  should  be 
elected  for  four  years  and  a  Legislature  should  not  convene 
more  than  once  in  two  years.  To  be  perfectly  frank  about  the 
matter  it  would  be  far  better  to  have  the  Legislature  convene 
once  in  four  years." 

Hon.  W.  S.  Hammond,  Governor  of  Minnesota:  "There  is 
no  sentiment  in  favor  of  annual  elections  and  annual  sessions. 
Personally  I  am  inclined  to  favor  one  election  and  two  sessions 
of  the  Legislature  every  four  years." 

Hon.  Earl  Brewer,  Governor  of  Mississippi:  "In  Mississippi 
elections  for  Representatives  and  Senators  in  our  Legislature  are 
held  every  four  years,  and  sessions  of  the  Legislature  every  two 
years.  I  prefer  this  plan  to  having  elections  every  two  years. 
By  electing  for  four  years  legislators  gain  experience  the  first 
session  that  is  valuable  to  them  the  next." 

Hon.  Cornelius  Roach,  Secretary  of  State  of  Missouri:  "Bien- 
nial elections  and  biennial  sessions  of  the  Legislature  are  giving 
general  satisfaction  in  this  State.    Most  official  terms  are  four 


years,  but  nearly  half  the  expiration  dates  of  those  terms  occur 
in  what  is  known  as  the  'off-year  election.'  " 

Hon.  A.  M.  Alderson,  Secretary  of  State  of  Montana:  "Per- 
sonally, I  am  inclined  to  believe  that  Representatives  might  be 
of  more  value  to  the  State  if  their  terms  were  four  years  instead 
of  two.  The  ordinary  legislator  just  begins  to  understand 
something  of  his  duties  when  the  session  adjourns.  He  could 
be  of  more  use  to  the  State  in  the  second  session  than  he  possi- 
bly could  be  during  his  first  experience.  I  much  prefer  biennial 
sessions  of  the  Legislature  to  annual  sessions,  and  with  our 
system  of  referendum  am  inclined  to  believe  that  were  it  not 
for  appropriations,  quadrennial  sessions  would  be  preferable  to 
biennial  sessions." 

Hon.  Holland  H.  Spaulding,  Governor  of  New  Hampshire: 
"  For  many  years,  now,  in  New  Hampshire  biennial  elections 
and  biennial  sessions  of  the  Legislature  have  been  the  law;  and 
I  do  not  think  there  is  any  sentiment  whatever  in  the  State  for 
a  change  to  annual  sessions  and  elections." 

Mr.  W.  S.  Wilson,  Legislative  Reference  Librarian  of  North 
Carolina:  "There  has  been  no  agitation  for  a  change  in  the 
biennial  session  of  the  General  Assembly." 

Mr.  John  R.  Cassidy,  Clerk  of  the  General  Assembly  of 
Ohio:  "From  1856  up  to  and  including  1893,  Ohio  had  annual 
sessions  of  the  Legislature  although  the  elections  came  bien- 
nially. Since  1893  we  have  had  biennial  sessions  only.  I  think 
the  sentiment  of  the  State  is  strongly  in  favor  of  the  biennial 
sessions  and  that  annual  sessions  would  not  now  be  tolerated." 


VI.    The  Quadrennial  System  of  Alabama. 

One  of  the  most  interesting  experiments  in  State  government 
is  the  system  adopted  by  Alabama  in  1901,  by  which  the  two 
houses  of  the  Legislatilre  are  chosen  for  four  years,  and  but 
one  regular  session,  limited  to  fifty  days,  is  provided  for  in 
each  quadrennial  period.  The  constitutional  provisions  are 
as  follows: 

Senators  and  Representatives  shall  be  elected  by  the  qualified  electors 
on  the  first  Tuesday  after  the  first  Monday  in  November,  unless  the 


374 

Legislature  shall  change  the  time  of  holding  elections,  and  in  every  fourth 
year  thereafter.  The  terms  of  office  of  the  Senators  and  Representatives 
shall  commence  on  the  day  after  the  general  election  at  which  they  are 
elected,  and  expire  on  the  day  after  the  general  election  held  in  the  fourth 
year  after  their  election,  except  as  othei-wise  provided  in  this  Constitu- 
tion.^  .  .  . 

The  Legislature  shall  meet  quadrennially  at  the  Capitol,  in  the  Senate 
chamber,  and  in  the  Hall  of  the  House  of  Representatives,  on  the  second 
Tuesday  in  January  next  succeeding  their  election,  or  on  such  other  day 
as  may  be  prescribed  by  law;  and  shall  not  remain  in  session  longer  than 
sixty  days  at  the  first  session  held  under  this  Constitution,  nor  longer  than 
fifty  days  at  any  subsequent  session. ^ 


The  committee  of  the  Convention  which  recommended  the 
establishment  of  the  quadrennial  system  said  in  support  of  the 
change : 

Section  5  is  changed  so  as  to  provide  for  quadrennial  instead  of  biennial 
sessions  of  the  Legislature.  In  view  of  the  prohibitions  to  be  placed  on 
the  legislative  power  to  pass  local  laws,  there  will  be  hereafter  neither  a 
demand  nor  a  necessity  for  biennial  sessions.  The  change  is  recommended 
on  the  additional  grounds  that  it  will  prevent  hasty  and  ill-advised  at- 
tempts to  repeal  general  laws  before  they  have  been  long  enough  in  force 
to  admit  of  a  fair  test  of  their  merits,  and  it  will  also  conduce,  by  remov- 
ing early  opportunity  for  repeal,  to  mature  and  careful  deliberation  by  the 
Legislature.  The  tendency  to  permanency  of  the  legislative  enactments 
will  be  greatly  increased,  and  much  expense  saved  to  the  State. ^ 


As  this  arrangement  has  now  been  in  force  for  sixteen  years, 
a  sufficient  time  has  elapsed  to  test  it  and  to  allow  the  forma- 
tion of  a  fairly  well-settled  public  opinion  as  to  its  merits. 

The  first  point  to  be  noted  is  the  actual  operation  of  the 
constitutional  limitation  upon  the  length  of  the  legislative 
session.  While  each  regular  session  is  limited  to  fifty  days, 
the  Legislature  is  in  fact  at  work  about  one  hundred  days, 
and  the  per  diem  remuneration  of  the  members  covers  that 
period  of  time.  The  constitutional  limitation  is  held  to  apply 
only  to  the  days  when  there  is  a  session  of  the  Legislature, 

'  The  Constitution  of  Alabama  of  1901,  sec.  46. 
2  Ibid.,  sec.  48. 

'  Journal  of  the  Constitutional  Convention  of  Alabama  of  1901,  467.     The  arguxnent  set  forth 
above  was  repeated  in  substance  in  the  Convention's  Address  to  the  People. 


375 

while  those  days  devoted  to  committee  work  are  not  so  included 
although  they  are  part  of  the  members'  legislative  activity 
and  are  paid  for  accordingly. 

In  substituting  quadrennial  for  biennial  sessions,  the  juris- 
diction of  the  Legislature  was  considerably  curtailed,  especially 
in  the  matter  of  local  or  special  legislation.  The  Constitution 
enumerates  thirty-one  classes  in  which  the  Legislature  is 
forbidden  to  pass  any  "special,  private  or  local  law."  By  this 
arrangement  it  was  hoped  that  one  quadrennial  session  devoted 
entirely  to  general  legislation  would  be  sufficient  to  meet  the 
needs  of  the  State. 

In  the  case  of  so  radical  a  change  as  that  made  in  the 
Alabama  Constitution  of  1901  it  is  not  surprising  that  much 
difTerence  of  opinion  as  to  its  wisdom  existed  at  the  time  it 
was  made,  and  that  some  difference  of  opinion  still  exists  as 
to  whether  the  State  has  gained  or  lost  by  the  introduction  of 
the  new  system.  For  the  purpose  of  throwing  light  upon  the 
question,  an  effort  has  been  made  to  ascertain  the  views  of 
each  incumbent  of  the  office  of  Governor  since  the  adoption 
of  the  Constitution  of  1901.  One  of  these  gentlemen  made 
no  reply  to  the  communications  sent  him,  but  the  present 
Governor  and  two  of  his  predecessors  have  expressed  them- 
selves on  one  or  more  of  the  following  points: 

1.  Does  public  sentiment  in  Alabama  seem  to  support  the 
quadrennial  sj'stem? 

2.  What  has  been  the  effect  of  the  quadrennial  system  upon 
the  character  of  legislation? 

3.  What  has  been  the  effect  upon  the  volume  of  legislation 
enacted? 

As  to  the  present  state  of  public  sentiment,  it  is  significant 
that  every  Legislature  which  has  assembled  since  1901  has 
submitted  a  constitutional  amendment  providing  for  the  resto- 
ration of  biennial  sessions.  As  to  these  proposals,  Governor 
Henderson  writes: 

Each  session  of  the  Legislature  since  the  constitutional  provision  fixing 
quadrennial  sessions  has  passed  a  resolution  recommending  an  amend- 
ment to  the  Constitution  restoring  biennial  sessions.  These  proposed 
amendments  have  uniformly  been  voted  down  by  large  majorities.  This 
shows  the  wishes,  at  least,  of  the  majority  of  the  electorate  of  the  State. 


376 

My  own  opinions  and  views  coincide  with  those  of  the  majority.  If  there 
should  be  an  urgent  reason  why  the  Legislature  should  be  assembled,  the 
Governor  has  authoritj'  to  call  them  into  special  session.  The  e\'ils  that 
we  have  gotten  rid  of  through  quadrennial  sessions  overbalance  the  in- 
conveniences of  biennial  sessions.^ 


Ex-Governor  Jelks  (Governor  of  Alabama,  1901-07)  "writes: 

As  to  a  sentiment  in  favor  of  return  to  biennial  sessions:  there  certainly 
is  a  sentiment  in  this  State  in  favor  of  repealing  that  section  of  the  Con- 
stitution of  1901  providing  for  quadrennial  sessions,  but  it  was  not  suf- 
ficientlj'  strong  to  carry  at  an  election  when  the  voters  had  an  opportunity 
to  pass  on  it.  The  same  result  would  probably  follow  if  the  voters  had 
another  opportunitj^  to  pass  on  it.  Sessions  of  the  Legislature  upset 
business  in  the  State.  I  do  not  myself  believe  that  the  sentiment  in  favor 
of  a  change  is  growing.  Also,  it  does  not  appear  to  me  that  the  new  pro- 
vision has  worked  to  the  detriment  of  the  State  in  any  respect. 


As  to  the  effect  of  the  quadrennial  system  upon  the  character 
of  legislation,  Ex-Governor  O'Neal  (Governor  of  Alabama, 
1911-15)  writes: 

Instead  of  preventing,  the  quadrennial  system  has  proven  to  be  the  most 
prolific  source  yet  devised  for  hasty  and  ill-considered  legislation.  The 
vice  of  the  system  was  that  it  denied  the  people  for  four  years  the  right  to 
repeal  or  revise  vicious  or  unwise  legislation.  The  right  of  the  people  to 
self-government  was  suspended  for  four  years,  and  during  that  period 
they  were  forced  to  endure  without  remedy  the  evil  effects  of  any  bad 
laws  that  might  exist  upon  the  statute  books. 

This  is  not  the  view,  however,  of  Ex-Governor  Jelks,  who 
says: 

As  to  the  statement  that  the  quadrennial  sessions  have  resulted  in  ill- 
digested  legislation,  I  think  this  is  not  true,  or,  if  true,  only  true  in  a 
measure.  We  have  always  had  in  this  State,  and  probably  in  all  other 
States,  ill-digested  legislation  and  under  present  conditions  will  probably 
always  have  ill-considered  laws.  The  larger  number  of  members  of  the 
Legislature,  I  presume,  of  all  States  are  not  very  responsible  people,  mean- 
ing to  say  that  the  best  material  in  the  counties  do  not  offer  for  legislative 
honors.    There  is  no  special  occasion  for  ill-digested  legislation  growing 

1  The  quotations  from  Governor  Henderson  and  Ex-Governor  Jelks  are  taken  from  letters  to 
the  writer.  The  quotations  from  Ex-Governor  O'Neal  are  from  his  article,  "Distrust  of  State 
Legislatures  —  the  Cause,  the  Remedy,"  North  American  Review,  199:  684  (May,  1914). 


377 

out  of  the  fact  that  they  are  only  in  session  presumably  one  time  in  four 
years.  ...  I  do  not  believe  it  at  all  true  that  under  the  new  provision 
legislative  acts  have  been  less  well  digested  than  the  acts  of  those  Legis- 
latures which  went  before. 


As  to  the  effect  of  the  quadrennial  system  upon  the  volume 
of  legislation  Ex-Governor  O'Neal  says  that  "  the  prohibition  of 
local  legislation  did  not  result  in  lessening  the  demand  for 
general  legislation."  Just  why  it  should  be  expected  that  the 
reduction  in  local  legislation  should  affect  the  amount  of 
general  legislation  is  not  clear.  Apparently  there  is  no  con- 
nection between  the  two.  On  this  aspect  of  the  matter,  Ex- 
Governor  Jelks  observes: 

This  can  hardly  be  true  at  all,  and  I  say  this  without  looking  over  the 
acts  of  late  j^ears.  Many  theretofore  subjects  for  legislation  were  posi- 
tively eliminated  and  it  cannot  be  possible  that  this  elimination  has 
resulted  in  no  decrease  of  legislative  action.  The  excuse  for  making  a 
contrary  statement  probably  grows  out  of  the  fact  that  the  legislative  acts 
of  late  years  are  perhaps  found  to  be  as  extensive  in  volume  as  the  acts  of 
previous  Legislatures. 

So  far  as  can  be  judged  from  the  votes  of  the  people  and 
from  the  testimony  of  the  three  executives  who  have  expressed 
themselves,  Alabama  seems  well-satisfied  with  the  results  of 
its  quadrennial  legislative  elections  and.  sessions. 


VII.    The  Agitation  for  Biennial  Elections  and  Sessions 
IN  Massachusetts. 

1.     Action  in  the  Legislature. 

The  question  of  the  biennial  election  of  executive  and  legis- 
lative ofiicers  and  of  biennial  sessions  of  the  General  Court 
has  been  discussed  in  Massachusetts  for  more  than  a  half 
century.  In  the  Constitutional  Convention  of  1853  the 
committee  to  which  the  subject  was  referred  reported  that  it 
was  "inexpedient  for  the  Conventiop  to  act  thereon."  This 
report  was  concurred  in  by  the  Convention  without  debate. 
Four  years  later  in  1857  the  subject  was  introduced  into  the 


378 


Legislature  and  met  the  same  fate  which  it  had  encountered 
in  the  Constitutional  Convention.  In  1861,  1866,  1867,  and 
1869  fruitless  attempts  were  made  to  obtain  favorable  action, 
but  after  1870  the  movement  in  favor  of  biennials  gathered 
considerable  impetus.  The  nature  of  the  amendments  pro- 
posed and  the  action  taken  by  each  house  thereon  are  indicated 
in  the  following  table: 

Senate  and  House  Votes  on  Biennials  since  1853. 


Session  of  —                                          Senate. 

House. 

1867,1          

45-70 

1870,2 

- 

Rejected;  voice  vote. 

1871,2,3 

Adversely  reported. 

- 

1876," 

Adversely  reported. 

- 

1877, 6 

- 

Adversely  reported. 

1878, " 

- 

Adversely  reported. 

1879,'' 

31-0 

170-22 

1880, 1 

25-7 

114-53 

1881,1 

- 

111-86 

1882, 1 

26-15 

60-93 

1883, " 

2.3-14 

133-64 

1884, " 

22-4 

139-87 

1885, 1 

34-2 

158-55 

1885, * 

29-9 

153-68 

1886, 1 

23-12 

112-86 

1888, 6 

24-8 

126-72 

1888,  ■> 

20-13 

105-78 

1888,3 

15-18 

- 

1890, 1 

21-6 

143-38 

1891,1 

23-16 

116-101 

1892, 1 

- 

120-87 

1893, 1 

24-9 

93-81 

1894, 1 

19-9 

106-83 

1895, 1 

26-4 

163-57 

1896, 1 

24-8 

175-50  6 

1896, 1 

24-8 

176-49 ' 

1914,1 

8-15 

- 

1915,1 

24-14 

_ 

1916,1 

Adversely  reported. 

- 

1917,1," 

Adversely  reported. 

- 

1  Biennial  elections  of  State  officers  and  General  Court. 

2  Triennial  elections  for  Senate,  biennial  for  House. 
'  Biennial  sessions. 

"  Biennial  elections  of  State  officers  and  General  Court  and  biennial  sessions. 
'  Triennial  elections  for  State  officers  and  for  the  Senate,  biennials  for  House. 
^  Biennial  elections  of  State  officers. 
'  Biennial  elections  of  General  Court. 


In  spite  of  the  large  vote  in  favor  of  the  biennial  principle 
which  was  cast  several  times  in  the  Legislature,  amendments 


379 


embodying  it  have  been  submitted  to  the  people  only  once. 
In  1896  two  amendments,  one  establishing  biennial  elections 
of  State  officers  and  the  other  providing  only  for  biennial 
elections  of  members  of  the  General  Court,  were  submitted 
to  the  people  and  rejected  by  large  majorities.^  The  follow- 
ing table  shows  the  vote  in  detail: 


Popular  Vote  on  Biennials. 

First  Article.  — Establishing  Biennial  Elections  of  State  Officers. 


County. 

Votes. 

Yes. 

No. 

Suffolk, 

25,193 

42,025 

Essex, 

11,673 

26,455 

Middlesex, 

25,785 

33,545 

Worcester, 

12,077 

15,922 

Hampshire, 

3,115 

2,252 

Hampden, 

9,954 

6,961 

Franklin, 

2,669 

1,948 

Berkshire, 

4,817 

3,491 

Norfolk,  . 

6,744 

9,613 

Plymouth, 

3,727 

7,310 

Bristol,     . 

8,314 

9,872 

Barnstable, 

1,130 

1,421 

Dukes  County, 

139 

262 

Nantucket, 

168 

186 

Totals, 

115,505' 

161,263 

Second  Article. 

— •  Establis 

king  Biennial  Elections  of  Members  of  the  General  Court. 

Suffolk,    . 

23,134 

41,316 

Essex, 

10,614 

25,692 

Middlesex, 

23,804 

32,356 

Worcester, 

11,088 

15,607 

Hampshire, 

2,826 

2,186 

Hampden, 

9,066 

6,628 

Franklin, 

2,454 

1,893 

Berkshire, 

4,341 

3,303 

Norfolk,  . 

6,248 

9,281 

PljTnouth, 

3,420 

6,962 

Bristol,     . 

7,335 

9,267 

Barnstable, 

989 

1,321 

Dukes  County, 

129 

235 

Nantucket, 

141 

164 

Totals, 

105,589 

156,211 

'  Since  the  above  statement  was  prepared,  an  amendment  providing  for  biennial  elections 
has  been  adopted  in  Massachusetts  by  a  vote  of  142,868  to  108,588. 


380 


2.  Attitude  of  Governors  of  Massachusetts. 
Governor  Clafiin  (1869-72)  favored  biennial  sessions  and 
in  his  second  term  an  amendment  providing  for  the  triennial 
election  of  Senators  and  the  biennial  election  of  Representa- 
tives was  favorably  reported  in  the  House,  but  was  rejected. 
In  the  following  year  Governor  Clafiin  renewed  his  recom- 
mendation of  biennial  sessions  but  it  was  adversely  reported 
in  the  Senate.  In  1878  Governor  Rice  strongly  recommended 
both  biennial  elections  and  biennial  sessions,  and  in  1879 
Governor  Talbot  made  the  same  recommendation.  Accordingly 
an  amendment  embodying  his  recommendation  was  enacted 
by  the  requisite  vote  in  both  the  Senate  and  the  House.  In 
the  following  Legislature,  however,  the  amendment  was  divided. 
One  amendment  provided  for  biennial  elections  of  the  Gov- 
ernor, Lieutenant-Governor,  Secretary,  Treasurer,  Auditor  and 
Attorney-General,  while  the  other  provided  for  biennial  elec- 
tions of  Senators  and  Representatives.  This  division  of  the 
amendment  made  it  necessary  for  the  substitute  amendments 
to  be  submitted  again  to  the  Legislature  in  the  following  year. 
Meantime,  Governor  Talbot  had  been  succeeded  by  Governor 
Long,  who  "questioned  the  expediency  of  biennial  elections," 
and  his  opposition  is  doubtless  responsible  in  part  for  the 
failure  of  the  measure  to  receive  the  necessary  vote  when  it 
reached  its  final  stage  in  the  House.  At  a  meeting  of  the 
Massachusetts  Club,  Governor  Long  defended  annual  elections 
at  considerable  length  and  answered  the  argument  so  frequently 
heard  that  all  the  States  in  the  Union,  excepting  only  Rhode 
Island  and  Massachusetts,  had  adopted  biennials  by  pointing 
out  that  a  majority  of  the  States  had  adopted  the  elective 
S3^stem  for  their  judiciary,  and  inquiring  whether  any  Massa- 
chusetts man  would  be  willing  to  give  up  the  appointive 
system.  In  reply  to  the  argument  that  biennials  would  result 
in  better  legislation,  better  men,  and  better  representatives, 
Mr.  Long  said : 

I  find  that  under  our  system  of  annual  elections  it  used  to  be  a  custom 
in  Massachusetts  to  send  the  same  man,  if  he  were  a  deserving  man, 
year  after  year,  for  fifteen  or  twenty  years.  I  find  that  that  obtains 
some  at  the  present,  but  not  so  much  as  it  formerly  did.  Why?  Because 
the  great  body  of  our  people  are  so  well  educated  and  trained  for  public 


381 

affairs  owing  to  our  system,  which  holds  government  close  to  the  people, 
that  you  have  a  great  abundance  of  excellent  material  to  draw  from. 

Governor  Robinson  (1884-87)  strongly  advocated  biennial 
elections  and  sessions,  and  in  his  inaugural  in  1886  he  said: 

It  is  not  without  striking  significance  that  in  every  Legislature  which 
has  acted  upon  this  question  in  this  State,  the  members  coming  freshly  from 
the  people,  the  proposition  has  but  narrowly  failed  of  adoption. 

Governor  Ames  said  in  1888,  when  speaking  of  biennial 
elections  and  prohibition: 

It  will  be  your  duty  to  inquire  earnestly  into  the  probable  bearing  of 
these  measures  upon  the  public  welfare  with  a  view  if  approved  to  give 
them  the  legislative  sanction  which  is  a  necessary  preliminary  to  the 
direct  expression  of  the  people  thereupon. 

Governor  Brackett  in  1890  advocated  biennial  elections  but 
not  biennial  sessions  of  the  Legislature,  saying: 

One  of  the  objections  urged  against  the  system  of  biennial  elections 
and  sessions,  in  those  States  in  which  it  has  been  adopted,  is  that  very 
few  members  of  the  Legislature  are  re-elected,  so  that  it  is  largely  com- 
posed of  men  without  previous  legislative  experience.  .  .  .  Under  our 
present  system  about  one-third  only  of  the  members  of  the  House  of 
Representatives  are  re-elected,  as  a  rule.  With  biennial  elections  this 
proportion  would  doubtless  be  diminished.  But  a  Legislature  elected 
for  two  years  and  meeting  annually  would,  at  its  second  session,  be  com- 
posed wholly  of  experienced  members.  The  effect  would  be,  as  I  believe, 
that  the  members  would  be  disposed  to  postpone  to  the  second  session 
propositions  of  questionable  expediency  coming  before  them  at  the  first, 
in  order  that  they  might  have  ample  time  for  their  consideration.  On 
the  other  hand,  at  the  second  session  they  would  not  be  inclined,  except 
in  special  exigencies,  to  enter  again  upon  the  consideration  of  questions 
which  had  been  finally  disposed  of  at  the  first. 

Governor  Walsh  in  1914  mentioned  biennial  elections  among 
the  measures  "most  persistently  pressing  for  constitutional 
authority,"  while  in  his  inaugural  of  1915  he  said: 

It  is  impossible  for  those  who  have  not  been  in  the  public  service  to 
realize  how  much  its  efficiency  is  impaired  by  the  necessity  of  making 
ready  and  participating  in  the  struggle  of  annual  elections.  The  loss 
of  time  is  great,  but  the  unrest,  distraction  and  diversion  of  thought 


382 

from  the  channels  of  public  service  cause  a  still  greater  loss  in  the  value 
of  the  public  servant.  The  executive  officers  scarcely  become  acquainted 
with  their  duties  before  they  are  obliged  to  enter  upon  an  elaborate  cam- 
paign to  defend  themselves  against  attack  and  oftentimes  partisan  abuse, 
and,  perhaps,  are  turned  out  of  office  before  they  have  had  an  opportunity 
to  prove  their  capacitj',  or  to  put  in  operation  the  principles  or  reforms 
upon  the  advocacy  of  which  they  may  have  been  elected. 

I  recognize  the  necessity  of  keeping  the  government  close  to  the  people 
and  giving  them  an  opportunity  to  pass  judgment  upon  the  acts  of  their 
servants  as  often  as  necessary,  but  if  we  had  the  initiative  and  referendum 
and  the  recall  we  should  have  the  means  of  controlling  the  recalcitrant 
official  or  Legislature,  and  I  believe  it  would  then  be  of  great  advantage 
to  the  Commonwealth  to  have  less  frequent  elections. 

Governor  McCall  in  1916,  in  recommending  the  calling  of  a 
Constitutional  Convention,  said: 

The  party  of  which  a  majority  of  us  are  members  declared  in  its  last 
platform  in  favor  of  amendments  for  biennial  elections. 

3.  The  Forces  for  and  against  Biennials. 
An  unusual  array  of  forces  have  been  allied  in  favor  of 
biennials  in  the  last  three  years.  The  party  platforms  of 
the  Democrats  have  not  mentioned  the  subject,  but  the 
platforms  of  the  Republicans  in  1915  and  1916  and  of  the 
Progressives  in  1914  and  1915  favored  biennials.  In  the 
cause  of  biennials  have  also  been  enlisted  a  great  majority  of 
the  newspapers,  many  college  and  professional  men  and  or- 
ganizations of  business  men  throughout  the  Commonwealth. 
The  labor  organizations,  the  great  mass  of  the  Democratic 
party  (at  least  until  1914),  a  minority  of  Republican  political 
leaders,  and  a  few  Democratic  newspapers  of  the  State  have 
been  aligned  for  annual  elections.  The  petitions  in  favor  of 
biennial  elections,  according  to  the  Journals  of  the  Senate  and 
House,  have  been  mainly  from  business  organizations  and 
business  and  professional  men,  while  most  of  the  remonstrances 
came  from  organized  labor.  As  between  the  two  political 
parties,  the  support  for  biennials  in  the  Legislature  has  come 
almost  entirely  from  the  Republicans,  while  the  opposition  has 
come  chiefly  from  the  Democrats.  Among  the  leaders  of 
opinion  in  Massachusetts  who  have  expressed  themselves  in 
favor  of  biennials  are  President  Eliot,  Senator  Lodge,  President 


383 

Seelye,  Charles  Francis  Adams,  Judge  Francis  C.  Lowell, 
Samuel  J.  Elder,  and  Major  Henry  L.  Higginson.  Among  those 
who  have  been  prominent  in  opposition  were  Ex-Governor  Bout- 
well,  Ex-Governor  Long,  Senator  Hoar  and  Senator  Dawes. 

In  1886  an  especially  vigorous  campaign  was  waged  for 
biennials.  The  subject  was  more  thoroughly  discussed  than 
it  had  ever  been  before.  The  pioneer  statesmen  were  quoted 
in  opposition,  and  John  Adams'  famous  dictum,  "Where 
annual  elections  end,  there  slavery  begins,"  was  resurrected 
and  given  a  new  lease  of  life.  Those  who  made  most  use  of 
this  phrase  written  by  John  Adams  in  1776  overlooked  the 
fact  that  in  1787  he  speaks  of  annual  elections  as  being  on 
trial,  while  in  1808  he  is  protesting  against  the  annual  election 
of  members  of  Congress  on  the  ground  that  the  interval  be- 
tween elections  would  be  so  short  that  party  passion  would 
have  no  time  to  cool.^  James  G.  Blaine,  in  a  speech  at 
Augusta,  January  7,  1886,  six  years  after  Maine's  change  to 
biennial  sessions  of  the  Legislature,  regretted  her  action  and 
said,  in  words  much  quoted  in  Massachusetts: 

I  believe  it  is  a  mistake  in  the  republican  government  to  get  rid  of 
frequent  elections.  Perhaps  we  need,  not  yet  fear  for  the  beginning 
of  tyranny  as  John  Adams  warned  us  we  should,  if  we  dropped  annual 
elections,  but  I  am  persuaded  that  we  would  find  great  advantage  in 
retaining  the  old  system.  People  must  govern  themselves  or  somebody 
will  soon  govern  them,  and  there  is  no  way  to  keep  public  government 
fresh,  strong  and  effective  like  frequent  and  well-contested  elections. 

Mr.  Blaine  predicted  that  Maine  would  return  to  the  old 
system,  but  it  has  not  done  so,  and  in  the  same  year  in  which 
Mr.  Blaine  made  his  prediction  Nelson  Dingley  said  that  if 
the  question  were  resubmitted  to  the  people  of  Maine  he 
thought  they  would  sustain  biennial  elections  and  biennial 
sessions  by  a  vote  of  three  to  one. 

Senator  Hoar,  in  an  address  January  3,  1886,  before  the 
Massachusetts  Club,  said: 

Of  the  106  annual  elections  we  have  had  under  the  Constitution  of 
1780,  not  more  than  five  or  six  have  been  found  by  the  people  to  be  a 
considerable  burden.  Two  of  those,  the  elections  of  1878  and  1879, 
had  a  vast  and  most  beneficent  effect  in  instructing  the  working  men  in 

1  Works,  IV,  533. 


384 

sound  principles  of  finance  and  currency,  an  instruction  well  worth 
all  the  labor  and  anxiety  that  attended  them.  There  is  not  a  dollar 
of  the  manufacturing  capital  of  Massachusetts,  not  a  dollar  of  the 
$270,000,000  in  her  savings  banks,  not  a  note  or  bond  that  makes  up 
the  property  of  her  widows  or  orphans,  that  is  not  more  valuable  today 
by  the  reason  of  the  instruction,  in  the  application  of  common  sense 
and  common  honesty  to  these  subtilties,  that  the  laboring  man  gained 
from  the  discussions  with  General  Butler  in  those  years. 

Congressman  (afterward  Speaker)  Thomas  B.  Reed,  on 
January  25,  1886,  wrote  a  letter  which  was  read  at  the  hear- 
ing on  biennials  before  the  Committee  on  Election  Laws,  in 
wKich  he  said: 

I  think  we  made  a  great  mistake  in  Maine  in  changing  our  Constitu- 
tion in  regard  to  biennials.  The  project  was  submitted  to  the  people 
when  a  great  contest  for  supremacy  for  other  matters  was  going  on  between 
the  two  political  parties,  then  very  closely  matched,  and  there  was  no 
opportunity  for  full  discussion.  The  amendment  was  passed  without 
suitable  consideration.  .  .  .  The  plan  of  refusing  the  people  the  right 
to  review  every  year  the  doings  of  their  representatives  seems  to  me  to 
be  one  of  the  many  expedients  which  are  always  starting  up  to  carry  on  a 
government  of  the  people  without  the  people.  It  is,  of  course,  an  incon- 
venience for  vested  rights,  privileges  and  institutions  to  be  reviewed  every 
year  by  the  people,  but  it  is  of  the  essence  of  republican  government. 
Wlaen  you  double  the  prize  for  which  corrupt  politicians  or  interested 
monopolists  may  strive  by  making  two  years  of  power  the  stake,  instead 
of  one,  you  double  the  incentive  to  fraud  in  elections,  to  bribery  and 
wrongdoing,  and  divide  by  two  the  power  of  the  people  to  correct  wrong, 
to  make  progress  and  punish  dishonest  servants.  If  you  wish  the  benefit 
of  free  government,  you  must  take  the  methods,  even  if  they  are  onerous. 
If  the  people  are  to  govern,  they  have  got  to  take  the  trouble  to  govern. 
Government  by  the  people  will  not  run  itself.  All  approximations  toward 
despotism  will  —  for  a  while.  Contrive  it  by  whatever  institutions  you 
may,  by  wisdom  from  inside  or  wisdom  from  outside,  no  people  can  ever 
have  a  better  government  than  they  can  make  for  themselves.  If  they 
allow  the  ignorant,  the  scheming  politicians  or  any  one  else  to  govern 
them  while  they  have  the  voting  power,  and  frequent  opportunities  to 
exercise  it,  they  deserve  no  better  government,  and  will  be  sure  in 
the  end  not  to  get  it.  After  all  the  plans  for  avoiding  elections,  .  .  . 
have  duly  failed  and  brought  their  due  disasters,  we  shall  bethink  our- 
selves of  that  true  system  of  goverrunent  which  finds  its  exposition  in 
the  New  England  town,  the  system  of  making  every  citizen  interested 
in  government,  by  demanding  of  him  every  year  to  say  what  he  thinks 
of  his  servants  and  their  acts,  and  teaching  him  to  eschew,  as  inventions 
of  Satan,  all  these  schemes  for  getting  himself  governed  without  bother. 


385 


Appendix  A. 


Table    showing    Membership,    Term    of    Legislature,    Term    of 
Governor,  Frequency  of  Sessions  and  Limit  of  Sessions. 


Membership   1 

Term 

OF  — 

Term 

State. 

IN 

of 
Gov- 

Sessions held. 

Limit  of 

Session. 

Senate. 

House. 

Senate. 

House. 

ernor. 

Alabama,    . 

35 

106 

4 

4 

4 

Quadrennial. 

50  days. 

Arizona, 

19 

35 

2 

2 

2 

Biennial. 

60  days. 

Arkansas,    . 

34 

99 

4 

2 

2 

Biennial. 

60  days. 

California, 

40 

80 

4 

2 

4 

Biennial. 

None.  1 

Colorado,    . 

35 

65 

4 

2 

2 

Biennial. 

90  days. 

Connecticut, 

35 

258 

2 

2 

2 

Biennial. 

5  months.' 

Delaware,  . 

17 

35 

4 

2 

4 

Biennial. 

60  days. 

Florida, 

32 

73 

4 

2 

4 

Biennial. 

60  days. 

Georgia, 

44 

189 

2 

2 

2 

Annual. 

50  days. 

Idaho, 

37 

65 

2 

2 

2 

Biennial. 

60  days. 

Illinois, 

51 

153 

4 

2 

4 

Biennial. 

None. 

Indiana, 

50 

100 

4 

2 

4 

Biennial. 

61  days. 

Iowa, 

50 

108 

4 

2 

2 

Biennial. 

None. 

Kansas, 

40 

125 

4 

2 

2 

Biennial. 

50  days. 

Kentucky, 

38 

100 

4 

2 

4 

Biennial. ' 

60  days. 

Louisiana,  . 

41 

118 

4 

4 

4 

Biennial. ' 

60  days. 

Maine, 

31 

151 

2 

2 

2 

Biennial. 

None. 

Maryland, 

27 

102 

4 

2 

4 

Biennial. ' 

90  days. 

Massachusetts,  ^  . 

40 

240 

1 

1 

1 

Annual. 

None. 

Michigan,  . 

32 

100 

2 

2 

2 

Biennial. 

None. 

Minnesota, 

67 

130 

4 

2 

2 

Biennial. 

90  days. 

Mississippi, 

45 

136 

4 

4 

4 

Biennial. 

None. 

Missouri,    . 

34 

142 

4 

2 

4 

Biennial. 

70  days. 

Montana,    . 

41 

95 

4 

2 

4 

Biennial. 

60  days. 

Nebraska,  . 

33 

100 

2 

2 

2 

Biennial. 

60  days. 

Nevada, 

22 

53 

4 

2 

4 

Biennial. 

60  days. 

New    Hampshire, 

24 

404 

2 

2 

2 

Biennial. 

None. 

New  Jersey, 

21 

60 

3 

1 

3 

Annual. 

None. 

New  Mexico, 

24 

49 

4 

2 

2 

Biennial. 

60  days. 

New  York, 

51 

150 

2 

1 

2 

Annual. 

None. 

North  Carolina,  . 

50 

120 

2 

2 

4 

Biennial. 

60  days. 

North  Dakota,    . 

49 

113 

4 

2 

2 

Biennial. 

60  days. 

Ohio, 

36 

128 

2 

2 

2 

Biennial. 

None. 

Oklahoma, 

44 

111 

4 

2 

4 

Biennial. 

60  days. 

Oregon, 

30 

60 

4 

2 

4 

Biennial. 

40  days. 

Pennsylvania, 

50 

207 

4 

2 

4 

Biennial. 

None. 

Rhode  Island, 

39 

100 

2 

2 

2 

Annual. 

60  days. 

South  Carolina,  . 

44 

124 

4 

2 

2 

Annual. 

40  days. 

South  Dakota,     . 

45 

104 

2 

2 

2 

Biennial. 

60  days. 

Tennessee, 

33 

99 

2 

2 

2 

Biennial. 

75  days. 

Texas, 

31 

142 

4 

2 

2 

Biennial. 

60  days. 

Utah, 

18 

46 

4 

2 

4 

Biennial. 

60  days. 

Vermont,    . 

30 

246 

2 

2 

2 

Biennial. ' 

None. 

Virginia, 

40 

100 

4 

2 

4 

Biennial. ' 

60  days. 

Washington, 

42 

97 

4 

2 

4 

Biennial. 

60  days. 

West  Virginia,     . 

30 

94 

4 

2 

4 

Biennial. 

45  days. 

Wisconsin, 

33 

100 

4 

2 

2 

Biennial. 

None. 

Wyoming,  . 

27 

57 

4 

2 

4 

Biennial. 

40  days. 

'  Split  session  —  first  part  30  days,  recess  30  days,  second  part  no  limit. 

2  First  Wednesday  after  first  Monday  in  June. 

'  Meets  in  even  years.    All  others  in  odd  years. 

*  Since  the  above  table  was  prepared  a  constitutional  amendment  has  been  adopted  providing 
that  in  1920  the  Governor  and  other  State  officers  and  members  of  the  Legislature  shall  be 
chosen  for  terms  of  two  years. 


386 


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389 


Appendix    C. 


Massachusetts  Biennial  Amendment. 
Adopted  Novembeb  5,   1918. 

Section  1.  The  Governor,  Lieutenant-Governor,  Councillors,  Sec- 
retary, Treasurer  and  Receiver-General,  Attorney-General,  Auditor,  Sen- 
ators and  Representatives  shall  be  elected  biennially.  The  Governor, 
Lieutenant-Governor  and  Councillors  shall  hold  their  respective  offices 
from  the  first  Wednesday  in  January  succeeding  their  election  to  and 
including  the  first  Wednesday  in  January  in  the  third  year  following  their 
election  and  until  their  successors  are  chosen  and  qualified.  The  terms  of 
Senators  and  Representatives  shall  begin  with  the  first  Wednesday  in 
January  succeeding  their  election  and  shall  extend  to  the  first  Wednesday 
in  January  in  the  third  year  following  their  election  and  until  their  suc- 
cessors are  chosen  and  qualified.  The  terms  of  the  Secretary,  Treasurer 
and  Receiver-General,  Attorney-General  and  Auditor  shall  begin  with  the 
third  Wednesday  in  January  succeeding  their  election  and  shall  extend 
to  the  third  Wednesday  in  January  in  the  third  year  following  their  elec- 
tion and  until  their  successors  are  chosen  and  qualified. 

Section  2.  No  person  shall  be  eligible  to  election  to  the  ofiice  of  Treas- 
urer and  Receiver-General  for  more  than  three  successive  terms. 

Section  3.  The  General  Court  shall  assemble  every  year  on  the  first 
Wednesday  in  January. 

Section  4.  The  first  election  to  which  this  article  shall  apply  shall  be 
held  on  the  Tuesday  next  after  the  first  Monday  in  November  in  the  year 
nineteen  hundred  and  twenty,  and  thereafter  elections  for  the  choice  of 
all  the  officers  before-mentioned  shall  be  held  biennially  on  the  Tuesday 
next  after  the  first  Monday  in  November. 


390 


BIBLIOGRAPHY. 

Beard,  C.  A.    American  Government  and  Politics,  1911. 

Bryce,  James.     The  American  Commonwealth,  4th  Edition,  1910. 

Gamer,  J.  W.     Introduction  to  Political  Science,  1910. 

Holcombe,  A.  N.     State  Government  in  the  United  States,  1916. 

Macy,  J.,  and  Gannaway,  J.  W.    Comparative  Free  Government,  1915. 

Mathews,  J.  M.    Principles  of  American  State  Administration,  1917. 

Ashley,  R.  L.  "Terms  of  Public  Officers,"  Cyclopedia  of  American 
Government,  III,  517. 

O'Neal,  Emmet.  "Distrust  of  State  Legislatures  —  the  Cause;  the 
Remedy,"  North  American  Review,  CXCIX,  684  (May,  1914).  Valu- 
able criticism  of  the  Alabama  quadrennial  system  by  a  former  Governor 
of  that  State  who  favors  biennial  elections  with  annual  sessions. 

Reinsch,  P.  S.    American  Legislatures  and  Legislative  Methods,  1907. 


BULLETIN    No.    10 


THE     SHORT     BALLOT 


AfL 


CONTENTS. 


PAGE 

1.  The  Meaning  of  the  Term  "Short  Ballot," 395 

2.  The  "Short  Ballot"  Principles, 395 

3.  Some  Official  Opinions  upon  These  Principles, 395 

4.  The  Ballot  in  Massachusetts, 396 

5.  The  Ballot  in  Other  States, 397 

6.  Advocacy  of  the  "Short  Ballot"  by  Various  Governors,  .       .       .  398 

7.  Reports  of  Commissions  and  Action  taken  by  Various  States,        .  398 

(a)  Illinois, 399 

(b)  Iowa, 400 

(c)  Minnesota, 401 

(d)  Nebraska, 401 

(e)  New  York, 401 

(/)  Oregon, 403 

(g)  Pennsylvania, 404 

8.  Conclusion, 404 

Appendix.  —  State  and  County  Officers  Elected,  1916,        .       .       .  405 
Bibliography, 413 


i 


THE  SHORT  BALLOT. 


1.    The  Meaning  of  the  Term  "Short  Ballot." 

The  term  "short  ballot"  has  come  into  use  during  the  last 
ten  years  in  connection  with  the  movement  to  reduce  the 
number  of  elective  offices  in  States  and  municipalities.  It  is 
applied  to  any  ballot  upon  which  the  names  of  a  relatively 
small  number  of  candidates  appear.  The  "short-ballot"  move- 
ment contemplates  the  election  of  those  officers  only  who  are  to 
determine  policies  and  the  appointment  of  those  who  are  to 
act  in  a  purely  administrative  capacity. 

2,     The  "Short  Ballot"  Principles. 

The  principles  upon  which  the  agitation  for  a  "short  ballot" 
is  founded  are  enunciated  by  the  National  Short  Ballot  Asso- 
ciation as  follows:  — 

1.  That  only  those  offices  should  be  elective  which  are  im- 
portant enough  to  attract  (and  deserve)  public  examination. 

2.  That  very  few  offices  should  be  ffiled  by  election  at  one 
time,  so  as  to  permit  adequate  and  unconfused  public  examina- 
tion of  the  candidates. 

3.  That  the  application  of  these  principles  should  be  extended 
to  all  cities,  counties  and  States. 

3.    Some  Official  Opinions  upon  These  Principles. 

President  Woodrow  Wilson:  "Simplification!  Simplification! 
is  the  task  which  awaits  us  —  to  reduce  the  number  of  persons 
voted  for  to  the  absolute  working  minimum,  knowing  whom 
you  have  selected,  knowing  whom  you  have  trusted,  and  having 
so  few  persons  to  watch  that  you  can  watch  them.  That  is  the 
way  we  are  going  to  get  popular  control  back  in  this  country 
and  that  is  the  only  way  we  are  going  to  get  political  control 
back." 


396 


Ex-Governor  Charles  E.  Hughes:  "There  should  be  a  re- 
duction in  the  number  of  elective  offices.  The  ends  of  democ- 
racy will  be  better  attained  to  the  extent  that  the  attention  of 
the  voters  may  be  focussed  upon  comparatively  few  offices, 
and  the  incumbents  can  be  held  strictly  accountable  for  ad- 
ministration." 

Ex-President  William  H.  Taft:  "I  have  the  fullest  sympathy 
with  every  reform  in  governmental  and  election  machinery 
which  will  facilitate  the  expression  of  the  popular  will,  such  as 
the  short  ballot  and  reduction  of  elective  offices." 

Hon.  Elihu  Root,  President  of  the  New  York  Constitutional 
Convention:  "Now  anybody  can  see  all  these  one-hundred 
fifty-two  outlying  agencies,  big  and  little,  lying  around  loose, 
accountable  to  nobody,  spending  all  the  money  they  can  get, 
violate  every  principle  of  economy,  of  efficiency,  of  the  proper 
transaction  of  business.  Everyone  can  see  that  all  around  us 
are  political  organizations  carrying  on  the  business  of  govern- 
ment, that  have  learned  their  lesson  from  the  great  business 
organizations  which  have  been  so  phenomenally  successful  in 
recent  years," 

4.     The  Ballot  in  Massachusetts. 

Massachusetts  has  not  a  particularly  long  ballot,  inasmuch 
as  the  judges  are  appointive,  while  many  cities  elect  their 
officers  on  a  date  apart  from  the  State  and  national  elections, 
and  the  number  of  elective  county  officials  is  relatively  small. 
The  voter  is  not  ordinarily  confronted  wuth  a  ballot  covering 
from  fifty  to  one  hundred  elective  offices  as  is  the  case  in  many 
other  States.     (See  Appendix.) 

The  ballots  used  in  the  Massachusetts  State  elections  in 
other  than  a  presidential  year  usually  call  for  less  than  twenty 
selections  to  be  made  for  national.  State  and  county  offices. 
These  elective  offices,  apart  from  municipal  offices,  and  their 
terms  are :  — 

National. 

Term  (Years). 

United  States  Senator, 6 

Representative  in  Congress, 2 


397 

State. 

Term  (Years), 

Governor, 

Lieutenant-Governor, 

Secretary  of  State, 

Treasurer  and  Receiver-General, 

Auditor, 

Attorney-General, 

Executive  Councillors,  

Senator, 

Representative, 


County. 

Commissioners, 3 

Associate  Commissioners, 3 

Sheriff, 5 

District  Attorney, 3 

Treasurer, 3 

Register  of  Deeds, 5 

Register  of  Probate  and  Insolvency, 5 

Clerk  of  Court, 5 

The  Governor  with  the  approval  of  the  Council  appoints  all 
judicial  officers,  coroners,  notaries  public,  and  about  three 
hundred  and  fifty  members  of  nearly  one  hundred  boards  and 
commissions,  as  well  as  eighteen  department  heads.^ 

5,    The  Ballot  in  Other  States. 

There  are  no  "short  ballot"  States,  though  several  have 
taken  important  steps  in  the  direction  of  shortening  their  bal- 
lots, as  for  example  California,  where  the  names  of  the  State 
Railroad  Commission,  the  State  Printer  and  the  Clerk  of  the 
Supreme  Court  have  been  removed  from  the  ballot.  Ohio  has 
recently  removed  from  the  list  of  elected  officials  the  Public 
Works  Commissioner,  the  Superintendent  of  Public  Instruction 
and  the  Dairy  and  Food  Commissioner,  and  Iowa  has  ceased 
to  elect  the  clerk  of  its  Supreme  Court. 

The  nearest  approach  to  a  "short  ballot"  State  is  now  New 
Jersey,  where  but  a  single  State  executive  officer  is  elected. 

'  For  a  list  of  these  officials  and  boards  see  the  Manual  for  the  Constitutional  Convention,  p. 197  seq. 


398 

But  the  ballot  used  in  the  two  most  important  counties  in  New 
Jersey  is  distinctly  a  long  ballot,  as  the  members  of  the  State 
Legislature  from  these  counties  are  elected  at  large.  The  use  of 
the  "short  ballot"  as  regards  executive  officials  in  that  State 
has  apparently  resulted  in  establishing  the  Governor  in  a 
stronger  position  of  leadership  than  is  true  in  most  other 
States.  This  is  due  to  the  fact  that  the  other  State  olBBcers  are 
appointed  by  and  directly  responsible  to  the  Governor. 

6.  Advocacy  of  the  "Short  Ballot"  by  Various 

Governors. 

In  1915  an  appeal  for  the  "short  ballot"  was  made  in  the 
messages  of  the  Governors  of  Colorado,  Idaho,  Kansas,  Michi- 
gan, Minnesota,  Nevada,  New  Jersey,  New  York,  Oregon, 
Tennessee  and  Wisconsin. 

The  Governors'  messages  of  1917  contain  many  suggestions 
along  the  same  line,  notably  those  of  Governors  Borough  of 
Arkansas,  Keyes  of  New  Hampshire,  Hatfield  of  West  Virginia, 
Bickette  of  North  Carolina,  Neville  of  Nebraska,  Lowden  of 
Illinois  and  Capper  of  Kansas.  Governor  Capper  has  recently 
had  some  of  his  suggestions  adopted  by  the  Kansas  Legislature. 
Governor  Norbeck  of  South  Dakota  argued  against  divided 
responsibility,  saying:  "People  prefer  to  hold  the  Governor 
responsible  for  the  proper  conduct  of  the  different  departments 
of  the  State,  though  under  our  present  form  of  government  the 
Governor  has  not  the  slightest  authority  over  any  of  them," 
Governor  Philipps  of  Wisconsin  urged  the  appointment  of  the 
Secretary  of  State,  State  Treasurer  and  Attorney-General  as 
Governor's  advisors.  If  appointed  by  the  Governor  they  would 
necessarily  be  in  political  sympathy  with  him.  Governor 
Goodrich  of  Indiana  wished  to  have  all  the  boards  and  com- 
missions consolidated  in  a  few  departments  properly  related. 

7.  Reports  of  Commissions  and  Action  taken  by 

Various  States. 

Official  studies  of  the  subject  have  been  made  in  recent  years 
by  commissions  in  thirteen  States,  namely,  California,  Colorado, 
Connecticut,  Illinois,  Iowa,  Kansas,  Minnesota,  Nebraska,  New 
Jersey,  New  York,  Ohio,  Oregon  and  Pennsylvania. 


399 

The  criticisms  of  the  existing  system  and  the  proposals  for 
shortening  the  ballot  as  made  by  a  few  of  these  Commissions 
may  be  summarized  as  follows :  — 

(a)     Illinois. 

The  Illinois  Commission  found  the  evils  of  the  long  ballot 
to  be  duplication  of  positions  and  salaries,  work  poorly  done, 
high  cost  of  service  due  to  inefficient  methods  and  organization, 
lack  of  correlation  and  co-operation  between  officials,  failure  to 
get  before  the  Legislature  the  facts  essential  to  appropriations 
and  legislation,  and  the  failure  to  fix  responsibility. 

The  Commission  recommended  a  reduction  of  elective  officers 
by  statutory  provision.  It  recommended  that  the  following 
officers  be  removed  from  the  elective  list  and  made  appoin- 
tive, either  by  the  Governor  without  restriction,  or  by  the 
Governor  from  a  list  of  eligible  candidates  certified  by  a  State 
Civil  Service  Commission:  Secretary  of  State,  Auditor  of 
Public  Accounts,  State  Treasurer,  State  Superintendent  of 
Public  Instruction,  Clerk  of  the  Supreme  Court  (who  should  be 
appointed  by  the  judges  of  that  court),  members  of  the  State 
Board  of  Equalization,  and  Trustees  of  the  University  of 
Illinois. 

The  Legislature  of  1917  amended  the  Administrative  Code  to 
take  effect  on  July  1,  1917,  by  making  a  radical  reconstruction 
of  State  offices.  In  so  doing  it  followed  a  plan  similar  to  that 
proposed  by  the  Commission  and  also  comparable  to  that  pre- 
sented to  the  New  York  Constitutional  Convention  in  1915. 

This  plan  reorganizes  and  consolidates  the  officers,  boards 
and  commissions  into  a  limited  number  of  State  departments. 
There  are  to  be  nine  administrative  departments  of  finance, 
agriculture,  labor,  mines  and  minerals,  public  works  and  build- 
ings, public  welfare,  public  health,  trade  and  commerce,  regis- 
tration and  education.  This  leaves  the  constitutional  offices 
of  Lieutenant-Governor,  Secretary  of  State,  Auditor,  Treasurer, 
Attorney-General,  Superintendent  of  Public  Instruction,  and 
the  Trustees  of  the  State  University  and  Board  of  Equaliza- 
tion (the  two  last  mentioned  are  not  established  by  the  Con- 
stitution) to  remain  elective.     There  is  to  be  a  director  at  the 


400 

head  of  each  department  who  will  have  executive  oversight  of 
the  bureaus  or  divisions,  with  administrative  boards  and  un- 
paid advisory  boards  provided.  All  appointments  are  to  be 
made  by  the  Governor  with  the  consent  of  the  Senate  and  for 
a  period  of  four  years. 

The  results  effected  are  a  net  reduction  of  about  one  hundred 
official  positions,  a  centralization  of  purchasing,  the  creation 
of  an  executive  budget,  a  more  definite  location  of  responsibil- 
ity, a  proper  consolidation  of  functions  and  institutions,  a  more 
direct  aid  in  securing  consistent  and  effective  legislation,  and 
the  prevention  of  additional  and  useless  officials  and  boards. 

The  Legislature  also  adopted  a  resolution  for  a  referendum 
calling  a  Constitutional  Convention  to  be  voted  upon  by  the 
electorate  in  November,  1918.  The  purpose  is  to  extend  these 
changes  to  those  offices  which  are  established  on  an  elective 
basis  in  the  present  Constitution. 

(b)     Iowa. 

The  Iowa  Commission  reports  that  "after  careful  considera- 
tion this  Commission  believes  the  present  policy  of  creating  a 
department  and  then  leaving  it  practically  without  independent 
supervision,  is  unwise.  We  believe  the  State  will  receive  better 
service  if,  instead  of  the  present  diffusion  of  powers  and  re- 
sponsibilities, the  various  departments  of  the  State's  business 
activities  be  placed  under  the  direct  supervision  of  department 
heads  to  be  appointed  by  the  Governor  and  to  serve  subject  to 
his  wish,  thus  making  the  Governor  the  real  administrative  head 
of  the  State  —  the  real  source  of  authority  and  concomitant 
responsibility." 

The  commission  proposes  a  reorganization  into  one  group  of 
general  administative  officers  consisting  of  the  Attorney-Gen- 
eral, Secretary  of  State,  Auditor  (all  to  be  elected),  a  Tax 
Commission,  and  Civil  Service  Commission  (members  of  both 
to  be  appointive).  The  remaining  State  officers  are  grouped 
into  six  chief  departments,  —  finance,  public  works  and  con- 
servation, public  welfare,  education,  labor  and  commerce  and 
industry,  and  agriculture.  At  the  head  of  each  department  is  a 
director  who  is  to  be  elected  by  the  people  in  the  case  of  one 


401 

department    only,  —  that    of    finance    (treasurer),  —  and    ap- 
pointed by  the  Governor  in  the  case  of  all  the  others. 

(c)     Minnesota. 

The  Minnesota  Commission  proposed  in  1913  a  plan  of 
reorganization  which  would  provide  six  departments  which 
should  comprise  all  of  the  boards,  departments  and  commis- 
sions then  existing  or  to  be  created  in  the  future,  —  finance, 
public  domain,  public  welfare,  education,  labor  and  commerce, 
and  agriculture.  Each  department  with  the  exception  of 
finance  was  to  be  under  a  director  to  be  appointed  by  the 
Governor.  These  recommendations  have  not  been  carried  into 
effect. 

(d)  Nebraska. 

The  Nebraska  legislative  committee  report  of  1914  varies 
from  those  above  in  that  it  approaches  the  problem  of  reor- 
ganization from  the  legislative  rather  than  from  the  executive 
side.  It  proposes  a  constitutional  amendment  to  abolish  the 
bicameral  system  and  have  a  single  small  legislative  body. 
Other  States  which  have  made  this  same  proposal  are  South 
Dakota,  Washington,  Arizona,  Kansas  and  Oregon.  It  argues 
in  its  report  that  the  single  chamber  would  attract  the  ablest 
men,  concentrate  responsibility  for  legislation,  make  for  more 
conservative  law-making,  and  have  opportunity  for  a  longer 
and  more  careful  consideration  of  legislative  proposals. 

(e)  New  York. 

The  New  York  Bureau  of  Municipal  Research  in  its  report  to 
the  Convention  of  1915  recommended  that  only  the  Governor, 
Lieutenant-Governor,  Comptroller,  and  Attorney-General  should 
be  elected.  It  suggested  the  appointment  of  the  heads  of  de- 
partments, —  treasury,  public  works,  agriculture  and  industry, 
health  and  safety,  education,  industrial  relations,  charities  and 
corrections,  public  utilities,  insurance  and  banking,  civil  service, 
and  State  militia.  All  new  officers  and  bureaus,  according  to 
this  plan,  were  to  be  assigned  to  one  of  these  departments. 
The  heads  of  these  departments  were  to  be  appointed  by  the 
Governor  without  the  consent  of  the  Senate  and  were  to  hold 


402 

office  during  the  pleasure  of  the  Governor.  These  eleven  de- 
partment heads  were,  moreover,  to  form  the  Governor's  cabinet 
or  council  and  might  also  add  to  their  number  the  Secretary  of 
State  and  the  director  of  a  central  bureau  of  administration  (if 
one  should  be  created). 

These  recommendations  were  in  the  main  adopted  by  the 
Convention.  The  departments,  boards  and  commissions,  169  in 
number,  were  consolidated  into  seventeen  civil  departments, 
as  follows:  (1)  law,  (2)  finance,  (3)  accounts,  (4)  treasury,  (5) 
taxation,  (6)  state,  (7)  public  works,  (8)  health,  (9)  agriculture, 
(10)  charities  and  corrections,  (11)  banking,  (12)  insurance, 
(13)  labor  and  industry,  (14)  education,  (15)  public  utilities, 
(16)  conservation,  and  (17)  civil  service. 

Of  the  heads  of  these  civil  departments  only  the  Attorney- 
General  and  the  Comptroller  remained  elective.  The  appoint- 
ment of  all  the  others  was  vested  in  the  Governor  with  the 
exception  of  the  Department  of  Education,  which  was  placed 
in  charge  of  the  University  of  the  State  of  New  York,  the 
Regents  of  which  are  chosen  by  the  Legislature.  The  prin- 
ciples upon  which  this  reorganization  was  based  were  thus 
stated  by  the  committee  which  reported  on  the  subject  to  the 
Convention:  — 

The  Governor  and  other  State  officers  whose  powers  and  duties  have 
been  referred  to  your  committee  for  consideration  are  provided  for  in 
Articles  IV,  V  and  VIII  of  the  Constitution,  and  in  a  great  number  and 
variety  of  statutes.  There  were  152  departments,  bureaus,  boards  and 
commissions  which,  on  the  first  day  of  January,  1915,  constituted  the 
executive  branch  of  the  State  government.  In  numerous  instances  these 
overlap  in  jurisdiction,  and  conflict  in  operation.  This  e\il  has  been  ap- 
parent to  the  public  in  the  multiplicity  of  inspections  and  conflicting  orders 
coming  from  unrelated  and  independent  bineaus. 

Except  in  some  specific  matters,  and  to  a  partial  extent,  these  agencies 
are  independent  of  each  other  and  not  subject  to  the  inspection,  super- 
vision or  control  of  any  superior  authority,  unless  it  be  the  Governor  him- 
self. It  is  manifestly  impossible  for  the  Governor  personally  to  exercise 
direct  supervision  over  such  a  multitude  of  agencies.  They  are,  there- 
fore, practically  free  from  effective  control.  They  cannot  practically  be 
held  accountable  for  what  they  do,  or  fail  to  do.  .  .  . 

The  purpose  of  the  committee  has  been  to  provide  for  a  systematic 
plan  of  departmental  organization;  to  simplify  and  co-ordinate  the  ad- 
ministrative machmery  of  the  State;  to  subject  every  executive  agency  of 


403 

the  State  government  to  practical  accountability  and  to  fix  responsibility 
for  the  execution  of  the  laws. 

Your  committee  has  conferred  wth  the  other  committees  having  in 
charge  related  subjects  and  has  sought  to  conform  the  article  now  reported 
to  the  several  plans  outlined  in  their  reports. 

The  present  Constitution,  article  IV,  section  4,  provides  that  the  Gov- 
ernor "shall  take  care  that  the  laws  are  faithfully  executed."  It  is  the 
opinion  of  your  committee  that  the  executive  machinery  placed  at  his  dis- 
posal is  not  well  suited  to  the  purpose,  and  makes  economy  and  efficiency 
in  the  administration  of  such  laws  practically  impossible.  .  .  . 

The  changes  recommended  in  this  report  are  not  a  criticism  of  any  in- 
dividual either  in  this  or  in  previous  administrations.  The  criticism  is  of 
the  defective  system  under  which  our  public  servants  have  labored  at  great 
disadvantage  to  render  public  ser\dce.  The  machinery  of  government 
is  built  wrongly  and  no  one  under  present  conditions  can  make  it  work 
well.  It  is  this  condition  to  which  President  Taft  referred  when  he  told 
the  committee  that  a  study  of  the  government  of  the  State  of  New  York 
aroused  in  him  feelings  "of  profound  admiration  for  the  political  adaptabil- 
ity of  the  people  to  make  a  machine  work  that  nobody  who  had  any  real 
business  sense  would  think  would  work  under  any  conditions." 

(/)  Oregon. 
Oregon  has  agitated  a  plan  of  reorganization  since  1909. 
This  plan  proposes  to  abolish  the  Senate,  to  give  the  Governor 
a  seat  in  the  legislative  body,  to  create  an  executive  budget 
system  with  power  to  decrease  items  lodged  in  the  Governor 
only,  and  to  centralize  the  administrative  departments  in  the 
hands  of  the  Governor  and  a  business  manager.  The  question 
of  the  abolition  of  the  Senate  was  submitted  to  the  voters  by 
referendum  and  defeated.  The  other  provisions  of  the  plan 
have  been  summarized  as  follows :  — 

The  Oregon  plan  abandons  the  direct  election  of  executive  officers, 
with  the  exception  of  the  Governor  and  Auditor.  The  Governor  is  au- 
thorized to  appoint  the  principal  department  heads,  Secretary  of  State, 
Treasurer,  Attorney-General,  State  Printer,  and  Superintendent  of  Public 
Instruction,  together  with  a  new  officer,  called  the  State  Business 
Manager,  who  is  charged  with  the  supervision  of  the  rest  of  the  adminis- 
trative work  of  the  State,  except  that  of  the  Railroad  Commission.  The 
State  Business  Manager  is  clearlj'  intended  to  be  the  most  important 
administrative  officer.  These  department  heads  are  removable  by  the 
Governor  at  will  and  collectively  form  an  executive  council  or  cabinet. 
The  Governor  is  expressly  forbidden,  however,  to  remove  the  State  Busi- 
ness  Manager  or  any  subordinate  administrative   officer  for   partisan 


404 

reasons.  Thus  the  Governor  becomes  exchisively  a  political  leader,  and  the 
conduct  of  the  administration  is  vested  for  the  most  part  in  a  responsible 
professional  administrator  and  his  subordinates.  Politics  is  separated  from 
administration,  and  by  removing  the  purely  administrative  officers  (except 
the  Auditor)  from  the  ballot,  the  number  of  elected  officers  is  greatly 
reduced,  without  diminishing  popular  control  over  those  who  exercise 
political  powers.  In  brief,  the  introduction  of  the  short  ballot  is  a  leading 
feature  of  the  matured  Oregon  plan.^ 

This  plan  as  a  whole  has  not  been  submitted  to  the  people 
of  Oregon.  Various  parts  of  it  were  submitted  in  1910,  1912 
and  1914,  but  in  each  case  rejected. 

(g)  Pennsylvania. 
A  recent  amendment  to  the  Constitution  of  Pennsylvania  has 
secured  a  greatly  shortened  ballot.  The  electorate  is  not  here- 
after to  be  called  upon  to  vote  for  a  huge  number  of  local, 
State  and  national  officers  at  one  time.  Each  elector  will  have 
to  mark  his  ballot  only  for  Governor  and  Lieutenant-Governor 
and  two  other  State  officers,  for  a  Representative  in  Congress, 
a  State  Senator  and  a  Representative  in  the  General  Assembly 
from  his  own  district.  In  the  following  year  the  election  will 
be  for  local  officers  only. 

8.    Conclusion. 

In  practically  all  the  States  where  the  shortening  of  the 
ballot  has  been  under  serious  consideration  the  number  of 
elective  officers  is  greatly  in  excess  of  the  number  in  Massachu- 
setts. In  only  two  or  three  of  these  States,  despite  the  cum- 
brousness  of  the  ballots,  has  any  substantial  progress  been 
made.  The  "short  ballot"  movement  has  had  its  success,  for 
the  most  part,  in  the  cities  rather  than  in  the  States.  The 
present  Massachusetts  ballot,  while  c^-pable  of  being  somewhat 
shortened  if  such  action  should  be  deemed  advisable,  is  already 
one  of  the  shortest  and  best  in  the  country. 

'  Holoombe,  A.  N.,  Stale  Government  in  the  United  States,  p.  466. 


405 


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Trustees  or  Regents  of  State  University,  . 
Surveyor-General  (Engineer),  ..... 

Solicitor-General,    ....... 

Register  of  Land  OfRce  (Commissioner),    . 
Insurance  Commissioner,          ..... 

Chief  of  Bureau  of  Statistics,   ..... 

State  Geologist,       ....... 

Railroad  Commissioners,           ..... 

Chief  Mine  Inspector,      ...... 

State  Printer,          ....... 

Board  of  Education,         ...... 

State  Senate,           ....... 

House  of  Representatives  (Assembly), 

Supreme  Court,      ....... 

Court  of  Appeals,   .          .          .          .          .  '        . 

Circuit  Court  (District),            ..... 

Superior  Court,       ....... 

County  Court,         ....... 

Probate  Court,        ....... 

Court  of  Ordinary,           ...... 

Fiscal  Court,            .          .          . 

407 


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Criminal  Court 

Surrogate  Court 

Associate  Judges  (County  Court),     .... 
Chancellors,  ...••••• 

Reporter  of  Supreme  Court, 

Clerk  of  Supreme  Court, 

Clerk  of  Court  of  Appeals 

Clerk  of  Circuit  Court, 

Clerk  of  Superior  Court, 

Clerk  of  County  Court, 

Clerk  of  Probate  Court, 

Clerk  of  Criminal  Court, 

Clerk  of  the  Peace,           ...... 

Prothonotary,          ....... 

Levy  Court  Commissioners,     ..... 

Register  of  Wills,  Probate,  Insolvency, 

Register  of  Deeds,  Conveyances 

Register  of  Chancery, 

Surrogate,      ........ 

Justice  of  the  Peace,        ...... 

Constables,     ........ 

Public  Administrator,      ...... 

Sheriff 

Prosecuting  Attorney  (Solicitor) 

Jury  Commissioner,          ...... 

County  Commissioners  (Supervisors), 

Associate  Commissioners,          ..... 

County  Clerk,         ....... 

408 


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County  Comptroller,        .... 

County  Treasurer,            .... 

County  Recorder,  ..... 

County  Auditor,     ..... 

County  Assessors,  ..... 

County  Inspector,            .... 

County  Surveyor,  ..... 

County  Road  Commissioner,    . 

County  Superintendent  of  Education, 

County  Board  of  Education  (Instruction), 

County  License  Collector, 

County  Tax  Collector  (Revenue),     . 

County  Live  Stock  Inspector, 

County  Fish  and  Game  Warden, 

County  Overseer  of  the  Poor,  . 

Coroner,         ...... 

Jailer,    ....... 

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olvency, 

r).       '. 
visors). 

Reporter  of  Supreme  Court, 

Clerk  of  Supreme  Court, 

Clerk  of  Court  of  Appeals, 

Clerk  of  Circuit  Court,    . 

Clerk  of  Superior  Court, 

Clerk  of  County  Court,  . 

Clerk  of  Probate  Court, 

Clerk  of  Criminal  Court, 

Clerk  of  the  Peace, 

Prothonotary, 

Levy  Court  Commissioners, 

Register  of  Wills,  Probate,  Ins 

Register  of  Deeds,  Conveyance 

Register  of  Chancery, 

Surrogate, 

Justice  of  the  Peace, 

Constables,    . 

Public  Administrator, 

Sheriff, 

Prosecuting  Attorney  (Solicito 

Jury  Commissioner, 

County  Commissioners  (Super 
Associate  Commissioners, 
County  Clerk, 
County  Comptroller, 
County  Treasurer, 
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County  Auditor,     . 
County  Assessors,  . 

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412 


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County  Inspector,            .... 

County  Siu-veyor,  ..... 

County  Road  Commissioner,    . 

County  Superintendent  of  Education, 

County  Board  of  Education  (Instruction), 

County  License  Collector, 

County  Tax  Collector  (Revenue),     . 

County  Live  Stock  Inspector, 

County  Fish  and  Game  Warden, 

County  Overseer  of  the  Poor,  . 

Coroner,         ...... 

Jailer,    ....... 

413 


BIBLIOGRAPHY. 

Beard,  C.  A.  "Reconstructing  State  Government."  Supplement  to  the 
New  Republic,  IV,  42,  August,  1915. 

"The  Ballot's  Burden."    Political  Science  Quarterly,  Vol.  24,  1909. 

Childs,  R.  S.     Short  Ballot  Principles,  1911. 

Elliott,  E.     American  Government  and  Majority  Rule,  1916. 

Reorganization  of  State  Government  in  Iowa.  Iowa  Applied  His- 
tory Series,  II,  2,  1915. 

Illinois.  Preliminary  Report  of  the  Efficiency  and  Economy  Committee 
of  Illinois,  1915. 

Maey,  J.  "Ballot,  Short,"  in  Cyclopedia  of  American  Government,  I, 
104-105. 

Minnesota.  Preliminary  Report  of  the  Efficiency  and  Economy  Commis- 
sion of  Minnesota,  1914. 

Nebraska.  Legislative  Reference  Bureau,  Bulletin  No.  4,  "Reform  of 
Legislative  Procedure  and  Budget  in  Nebraska,"  1914. 

Oregon.  Draft  of  Suggested  Amendments  to  the  Constitution  of  Oregon. 
Issued  by  the  People's  Power  League,  1911. 

Short  Ballot  Association,  Publications  of. 

The  Short  Ballot  State  Amendment.  Submitted  to  the  Constitu- 
tional Convention  of  New  York,  1915. 

The  Short  Ballot  County  Amendment.    Submitted  to  the  Constitu- 


tional Convention  of  New  York,  1915. 
Updyke,  F.  A.    The  Short  BaUot  Principle  in  New  Hampshire,  1912. 
Reports  of  Commissions  appointed  in  IlUnois,  Minnesota,  Nebraska  and 

Oregon. 


BULLETIN   No.  11 


MUNICIPAL    HOME    RULE 


CONTENTS. 


PAGE 

I.    The  Meaning  of  Home  Rule, 419 

II.    The  Development  of  the  Home-Rule  Problem,  .       .419 

Scope  of  Legislative  Power  over  Cities, 420 

Constitutional  Limitations  upon  Special  Legislation,  .  .  420 
Results  under  Constitutional  Limitations,  ....  421 
New  York  and  Illinois  Plans  for  limiting  Special  Legislation,  422 

III.    The  Home-Rule  Movement, 423 

Nature  of  Power  granted  to  Cities  to  frame  Own  Charters,  .  424 

Cities  to  which  Home  Rule  applies, 425 

Procedure  in  Charter  making, 426 

Board  of  Freeholders, 426 

Duties  of  Board  of  Freeholders, 428 

Ratification  and  Approval  of  Charter, 428 

Approval  of  State  Authorities, 429 

Charter  Amendments  and  Revision, 431 

Contents  of  Charter  Provisions, 431 

Scope  of  Municipal  Home-Rule  Powers  in  Actual  Practice,  .  433 

Missouri, 434 

Washington, 434 

Minnesota,  Michigan  and  Texas, 435 

California  and  Colorado, 435 

Conclusion  as  to  Extent  of  Home-Rule  Powers  in  the  Various 

States, 437 

rV.    Optional  Charter  Laws, 437 

V.    Relation  between  City  and  State  in  Massachusetts,    .       .       .  439 
Appendix  A.  —  Home-Rule  Provisions  of  State  Constitutions,  .       .  441 

Ohio, 441 

Michigan, 441 

Oklahoma, 442 

Oregon, 443 

Appendix    B.  —  Home  -Rule  Pro\ision    recommended  by  the  Na- 
tional Municipal  League  Committee, 444 

Appendix  C.  —  Table  showing  Procedure  in  drawing  up  of  Charters,  447 
Bibliography, 450 


MUNICIPAL  HOME  RULE. 


I.    The  Meaning  of  Home  Rule. 

The  term  "municipal  home  rule"  refers  to  the  general  dele- 
gation of  the  power  of  self  government  to  cities  by  provisions 
of  the  State  constitution,  and  especially  to  the  delegation  of 
authority  to  municipalities  to  frame  and  adopt  their  own 
charters.  Broadly  speaking,  municipal  home  rule  might  also 
be  regarded  as  including  such  powers  of  self  government  as  are 
granted  by  statute,  but  inasmuch  as  rights  conferred  by  statute 
have  not  always  secured  the  necessary  freedom  of  cities  to  act 
in  their  own  affairs  without  interference,  the  term  has  been 
confined  to  those  powers  vested  in  municipalities  by  constitu- 
tional provisions  alone.  Such  constitutional  provisions  give  to 
municipal  corporations  rights  that  may  be  defended  against 
legislative  encroachment  just  as  may  the  rights  of  private  cor- 
porations. It  should  be  made  clear,  however,  that  municipal 
home  rule  does  not  involve  divorcing  the  city  from  the  State 
any  more  than  private  corporations  are  removed  from  State 
control  when  they  are  incorporated  with  special  powers.  Home- 
rule  cities,  although  possessing  the  right  to  frame  their  own 
charters,  still  remain  subject  to  the  Constitution  and  to  State 
laws  covering  matters  of  State  concern. 

Following  is  a  statement  of  the  development  of  the  home- 
rule  problem  in  American  cities  and  an  analysis  of  the  chief 
constitutional  provisions  in  the  twelve  States  which  have 
adopted  home  rule. 

II.  Development  of  the  Home-Rule  Problem. 
In  the  early  part  of  the  nineteenth  century  State  Legislatures 
did  not  concern  themselves  with  the  affairs  of  cities.  It  was 
only  after  municipalities  had  grown  and  their  activities  had  be- 
come important  that  this  policy  was  changed.  With  the  growth 
of  population,  the  development  of  transportation  facilities,  ease 


420 

of  communication  and  the  widening  of  local  Into  general  in- 
terests, Legislatures  were  prompted  to  act  where  cities  had  acted 
before  with  the  result  that  after  the  middle  of  the  last  century 
city  charters  became  subject  to  all  manner  of  alterations,  and 
the  affairs  of  large  cities,  especially,  were  made  objects  of  legis- 
lative attention. 

Scope  of  Legislative  Power  over  Cities. 

As  to  the  basis  of  legislative  power  over  municipalities, 
there  are  two  conflicting  views.  The  courts  of  some  States 
have  announced  the  so-called  doctrine  of  an  "inherent  right  of 
self  government"  on  the  part  of  cities  regardless  of  any  express 
statutory  or  constitutional  provisions.  Judge  Cooley  formu- 
lated this  principle  in  a  famous  Michigan  case  in  1871,  but  it 
has  been  applied  in  only  a  few  cases  and  then  with  limita- 
tions.^ The  view  which  has  prevailed  is  that  of  "complete 
legislative  supremacy,"  which  holds  that  the  city  is  a'  municipal 
corporation  created  by  the  State  and  deriving  all  its  powers 
from  the  State.^  Since  this  is  the  established  rule  both  of  law 
and  of  practice  the  only  restrictions  upon  legislative  action  are 
to  be  found  in  constitutional  limitations. 

The  earlier  State  constitutions  contained  very  few  restric- 
tions upon  the  Legislature  of  any  nature  whatsoever,  and  in 
many  States  there  were  no  provisions  at  all  limiting  the  power 
of  the  Legislature  in  dealing  with  municipal  corporations. 
By  the  middle  of  the  nineteenth  century,  however,  the  disposi- 
tion to  insert  checks  upon  legislative  interference  with  local 
administration  had  become  so  marked  that  whenever  State 
constitutions  were  revised  or  new  ones  adopted  such  provisions 
were  invariably  included  and  during  the  last  half  century  this 
tendency  has  grown  even  stronger. 

Constitutional  Limitations  upon  Special  Legislation  for  Cities. 

The  most  widely  adopted  constitutional  provisions  limiting 

the  powers  of  the  Legislature  in  dealing  with  municipalities 

are  those  forbidding  the  Legislature  to  charter  cities  by  special 

law   or  to  enact   special  legislation  for  individual   cities.     As 

>  People  ex  rel.  Le  Roy  v.  Hurlbut  (1871),  24  Mich.  44. 
»  Meriwether  r.  Garrett  (1880),  102  U.  S.  472. 


421 

early  as  1845  and  1846  Louisiana  and  New  York  incorporated 
provisions  in  their  constitutions  prohibiting  special  legislation 
for  private  corporations.  It  remained,  however,  for  Ohio  in 
1851  to  extend  this  prohibition  to  include  municipal  corpora- 
tions, the  Constitution  of  1851  providing  that  the  State  Legis- 
lature should  pass  no  special  acts  conferring  corporate  powers, 
but  should  arrange  for  the  organization  of  cities  by  general 
laws  and  should  give  to  all  laws  of  a  general  nature  uniform 
operation  throughout  the  State.^ 

Following  Ohio,  and  especially  during  the  period  since  1870, 
other  States  have  adopted  constitutional  provisions  against 
special  legislation  for  cities,  until  to-day  the  constitutions  of 
twenty-nine  States  either  absolutely  prohibit  all  special  acts 
relating  to  cities  and  require  that  municipalities  shall  be  in- 
corporated by  general  laws  or  have  been  construed  by  the 
courts  to  include  such  a  requirement.^  Three  more  State  con- 
stitutions prohibit  special  legislation  for  the  smaller  cities  of  the 
State;  ^  while  three  others,  although  not  specifically  prohibit- 
ing special  legislation,  impose  certain  restrictions  upon  the 
Legislature  in  passing  such  acts.^ 

Results  under  Constitutional  Limitations  on  Special  Legislation 
and  the  Movement  to  remove  Cities  from  Legislative  Inter' 
ference. 
The   experience   of  the   States   whose   constitutions  prohibit 
special  legislation  for  cities  and   require  municipalities  to   be 
regulated   by  general   laws  has   shown,   however,   that  special 
charters  and  laws  continue  to  be  enacted  despite  such  restric- 
tions.   This  has  been  accomplished  by  such  devices  as  classify- 
ing cities  or  by  the  enactment  of  general  laws  which  by  reason 
of  their  subject  matter  can  be  applied  only  to  the  particular 

1  Constitution  of  Ohio,  1861,  Art.  XIII,  1,  6;  Art.  II,  26. 

'  These  constitutions  are  as  follows:  Alabama,  IV,  104;  Arkansas,  XII,  2,  3;  Arizona,  IV, 
div.  2,  19;  XIII,  1;  California,  XI,  6;  Colorado,  XIV,  13,  14;  Illinois,  XI,  1;  IV,  22;  Indiana, 
XI,  13;  IV,  23;  Iowa.  Ill,  30;  Idaho,  III,  19;  XII,  1;  Kansas,  XII,  1,  5;  Kentucky,  59,  156, 
160,  166;  Michigan,  VIII,  20;  Minnesota,  IV,  33;  Mississippi,  IV,  88;  Missouri,  IV,  53;  IX,  7; 
New  Jersey,  IV,  sec.  VII,  11;  Nebraska,  III,  15;  North  Dakota,  II,  69;  VI.  130;  New  Mexico, 
IV,  24;  Oregon,  XI,  2;  Oklahoma,  V,  46;  XVIII,  1,  2;  Ohio,  XVIII,  2;  Pennsylvania,  III.  7; 
South  Carolina,  III,  34;  VIII,  1,  2;  South  Dakota,  III,  23;  X.  1;  Utali,  VI,  26;  XI,  5;  Washing- 
ton, II,  28;  XI,  10;   Wisconsin,  IV,  31;   Wyoming,  III,  27;   XllI,  1. 

•  West  Virginia,  VI,  39;   Texas,  XI,  5;    Louisiana,  48. 

«  Georgia,  III,  sect.  7,  par.  16;    New  York,  XII,  2;   Virginia,  IV,  51;    VIII,  117. 


422 

city  intended.  The  evasion  of  constitutional  restrictions  against 
special  legislation  has  been  due  to  two  reasons:  first,  the 
tendency  of  the  Legislature  in  some  States  to  interfere  with 
local  affairs  for  various  motives,  and  secondly  to  the  fact 
that  cities  themselves  have  found  it  difficult  to  operate  under 
general  municipal  codes  which  apply  to  all  cities  in  the  State 
alike. 

As  a  result  of  this  experience  three  methods  have  been 
worked  out  for  providing  cities  with  forms  of  government 
which  are  more  fitted  to  their  individual  needs  than  the  general 
charter  system  and  which  will  also  give  them  greater  freedom 
of  action  than  the  system  of  special  legislative  charters.  These 
three  methods  are:  (1)  the  New  York  and  Illinois  plans  of 
limiting  special  legislation;  (2)  the  home-rule  charter  system; 
and  (3)  the  optional  charter  plan,  the  first  two  of  which  have 
been  established  by  constitution  and  the  latter  merely  by 
legislation. 

New   York  and  Illinois  Plans  for  limiting    Special  Legislation. 

The  States  of  New  York  and  Illinois  have  endeavored  to 
remove  cities  from  legislative  interference  but  have  at  the  same 
time  recognized  the  advisability  of  permitting  some  degree 
of  flexibility  in  the  powers  and  organization  of  individual 
cities.  With  this  end  in  view  provisions  have  been  included  in 
the  constitutions  of  these  three  States  allowing  special  legisla- 
tion for  municipalities  under  certain  restrictions. 

The  New  York  Constitution  of  1894  divides  cities  into  three 
classes  and  the  Legislature  is  permitted  to  pass  laws  applying 
to  all  of  the  cities  in  any  one  of  these  classes  without  consulting 
the  local  authorities.  Legislation  applying  to  a  single  city  may 
also  be  enacted,  but  in  such  cases  the  city  concerned  must  be 
consulted.  When  any  measure  applying  to  a  single  municipal- 
ity has  passed  both  branches  of  the  Legislature  it  must  be  sub- 
mitted to  the  mayor  of  the  city  concerned  in  the  case  of  the 
larger  places,^  or  to  the  mayor  and  council  in  the  smaller  munic- 
ipalities, who  must  return  it  to  the  Legislature  within  fifteen 
days  with  a  declaration  that  it  is  or  is  not  acceptable  to  the 
local  authorities.    If  it  is  acceptable  the  act  goes  directly  to  the 

*  Submitted  to  the  mayor  in  New  York,  Buffalo  and  Rochester. 


423 

Governor  for  his  consideration  as  in  the  case  of  other  bills;  if 
it  is  not  accepted  by  the  city  it  must  be  passed  again  by  the 
Legislature  and  approved  by  the  Governor  before  it  may  go 
into  effect.^  Provision  is  thus  made  in  the  New  York  Constitu- 
tion for  the  enactment  of  special  legislation  subject  to  a  suspen- 
sive veto  by  the  municipality. 

The  Constitution  of  Illinois  by  an  amendment  adopted  in 
1904  permits  special  legislation  for  the  city  of  Chicago  pro- 
vided that  a  majority  of  the  electors  of  the  city  voting  at  a 
special  or  general  election  are  in  favor  of  such  legislation^ 
Under  this  arrangement  the  city  of  Chicago  may  not  always  be 
able  to  obtain  desired  charter  amendments  or  special  powers, 
but  it  is  in  a  position  to  reject  any  law  of  special  applicability 
which  a  majority  of  its  voters  regard  as  being  against  the 
interests  of  the  municipality. 

III.  The  Home-Rule  Movement. 
Of  the  various  methods  for  giving  cities  limited  powers  of 
self-government  and  for  permitting  flexibility  in  organization, 
the  most  far-reaching  is  the  so-called  home-rule  system  which 
gives  cities  the  constitutional  right  to  draft,  adopt  and  amend 
their  own  charters.  Missouri  in  1875  was  the  first  State  to 
adopt  this  plan,  the  Constitution  of  that  State  granting  to  all 
cities  of  more  than  100,000  people  the  privilege  of  framing 
their  own  charters.  In  1879  California  introduced  a  home-rule 
clause  in  her  Constitution,  Washington  took  a  similar  step  in 
1889  and  Minnesota  in  1896.  The  movement  slackened  some- 
what until  1902,  when  Colorado  joined  the  list.  Then  came 
Oregon,  Oklahoma  and  Michigan  in  1906,  1907  and  1908, 
respectively,  while  the  last  four  States  —  Arizona,  Nebraska, 
Ohio  and  Texas  —  were  added  in  1912,  making  in  all  twelve 
home-rule  States.^ 

*  Constitution  of  New  York,  Art.  XII,  sect.  2. 

•  Constitution  of  Illinois,  Art.  IV,  sect.  34. 

'  References  to  constitutional  provisions  and  to  the  most  important  statutes  enacted  to  carry 
out  the  same:  (1)  Arizona,  XIII,  1-6;  (2)  California,  XI,  6,  7,  7H,  8,  8H:  (3)  Colorado.  XX, 
1,  4,  5,  6;  (4)  Michigan,  VIII,  20,  21;  procedure  prescribed  entirely  by  law.  Laics  of  1909,  No. 
279;  (5)  Minnesota,  IV,  36;  Laus  of  1S99,  Chap.  251;  1901,  Chaps.  129,  323;  190S,  Chap.  238;  (6) 
Missouri,  IX,  16-17,  20-25;  (7)  Nebraska,  XIa,  2-4;  (8)  Ohio,  XVIII,  3,  7,  8,  9;  (9)  Oklahoma, 
XVIII,  3a,  3&;  (10)  Oregon,  XI,  2;  procedure  not  prescribed  but  provisions  of  initiative  and 
referendum  have  been  held  to  apply;  (11)  Texas,  XI,  5;  procedure  prescribed  entirely  by  law. 
Laws  of  1913,  Chap.  147;    (12)  Washington,  XI,  10;   also  Laws  of  1890,  pp.  215  ff. 


424 

Although  no  State  has  adopted  a  comprehensive  system 
since  1912,  home-rule  amendments  have  been  agitated  during 
the  last  few  years  in  several  States,  including  Illinois,  Kansas, 
New  Jersey,  Pennsylvania  and  Wisconsin,  while  the  New  York 
Constitutional  Convention  in  1915  included  a  provision  on  this 
subject  which  was  rejected  when  the  Constitution  as  a  whole 
was  defeated  at  the  polls. ^  It  should  also  be  noted  that  the 
people  of  Maryland  ratified  a  constitutional  amendment  in  1915 
giving  some  measure  of  home  rule  to  Baltimore,  the  largest 
city  in  the  commonwealth.^  Laws  have  also  been  passed  in 
Connecticut  and  Florida  conferring  a  considerable  degree  of 
home  rule  upon  cities,  the  Connecticut  statute  providing  that 
any  town,  borough  or  city  shall  have  authority  to  draft  a 
charter  for  its  government  or  to  amend  its  present  charter 
under  the  conditions  prescribed  in  the  act.^  Grants  which  are 
revocable  at  any  time,  however,  and  which  give  only  limited 
powers  are  hardly  to  be  considered  in  the  same  category  as 
constitutional  provisions.  This  report  includes,  therefore,  only 
the  twelve  States  which  have  provided  for  home  rule  in  their 
fundamental  law. 

Following  is  an  analysis  of  the  chief  features  of  the  home- 
rule  provisions  of  the  various  State  constitutions. 

Nature  of  Power  granted  to  Cities  to  frame  their  Own  Charters, 
The  power  that  is  usually  granted  to  cities  under  home-rule 
provisions  of  the  Constitution  is  the  general  grant  of  power  to 
frame  and  adopt  their  own  charters  provided  that  such  charters 
are  consistent  with  and  subject  to  the  Constitution  and  laws  of 
the  State.  In  Texas  a  charter  must  not  only  be  consistent 
with  the  Constitution  and  general  laws  of  the  State  but  must 
also  be  subject  to  such  limitations  as  may  be  prescribed  by  the 
Legislature.  The  Minnesota  Constitution  also  gives  the  Legis- 
lature considerable  control  over  the  manner  in  which  home  rule 
powers  may  be  exercised  by  including  a  provision  which  requires 
that  before  a  city  may  incorporate  the  Legislature  shall  pre- 
scribe by  law  the  general  limits  under  which  the  charter  may  be 

*  Proposed  Constitution  of  New  York,  1915,  Art.  XV,  3,  4. 

*  Constitution  of  Maryland,  Art.  XI,  A. 

»  Laws  of  Connecticut,  1915,  Chap.  319;   Laws  of  Florida,  1915,  Chap.  6940. 


425 

framed.  Thus  it  is  seen  that  in  all  of  the  home-rule  States  it 
is  either  expressly  or  impliedly  required  that  a  charter  must 
be  in  conformance  with  the  State  Constitution,  and  in  all  but 
Colorado  and  Oregon,  with  the  general  laws  of  the  State  as  well, 
while  in  a  few  such  as  Michigan,  Minnesota  and  Texas,  the 
Legislature  must  act  before  cities  may  exercise  the  power  con- 
ferred upon  them  by  the  Constitution. 

As  noted  above,  the  Colorado  Constitution  is  the  only  one 
besides  Oregon  which  does  not  specifically  provide  that  a  home- 
rule  charter  shall  be  consistent  with  State  laws.  As  amended 
in  1912  the  Constitution  provides  that  the  people  of  each 
city  or  town  are  "hereby  vested  with  and  shall  always  have 
power  to  make,  amend,  add  to  or  to  replace  the  charter  of  said 
city  or  town,  which  shall  be  its  organic  law  and  extend  to  all 
its  local  and  municipal  matters."  The  Constitution  also  enu- 
merates in  considerable  detail  the  powers  that  may  be  exer- 
cised by  home-rule  cities,  and  states  that  the  intention  of  the 
provision  is  to  grant  to  all  such  municipalities  the  full  right  of 
self-government  in  both  local  and  municipal  matters.^  So  far 
as  the  letter  of  the  Constitution  is  concerned,  cities  in  Colorado 
are  given  larger  powers  of  home  rule  than  in  those  States  where 
this  right  is  conferred  merely  by  a  general  grant  of  power,  but 
inasmuch  as  the  amendment  of  1912  has  not  been  fully  inter- 
preted'by  the  courts  it  is  difficult  to  state  what  will  be  its  actual 
scope  in  the  future.  The  Oregon  Constitution  does  not  require 
the  charter  to  be  in  conformance  with  the  "general  laws"  of 
the  State,  but  merely  provides  that  it  shall  be  subject  to  the 
Constitution  and  to  the  criminal  laws  of  the  commonwealth 
and  also  to  the  local  option  laws.'- 

Cities  to  which  Home  Rule  applies.^ 
Of  the  dozen  States  that  have  provided  for  home  rule,  only 
four  —  Ohio,  Oregon,  Michigan  and  Minnesota  —  extend  to  all 
municipalities  the  privilege  of  drawing  up  their  own  charters. 

>  Constitution  of  Colorado,  XX,  6  (Amendment  of  1912). 

•  Constitution  of  Oregon,  XI,  2. 

»  Cities  which  may  como  under  home-rule  provisions:  Ohio,  Oregon  and  Michigan  —  any  city 
or  town;  Minnesota  —  any  city;  Colorado  —  county  and  city  of  Denver  and  any  city  over  2,000; 
Oklahoma  —  any  city  over  2,000;  Arizona  —  any  city  over  3,500;  California  —  any  city  or  con- 
solidated city  and  county  over  3,500,  also  any  county;  Nebraska  —  any  city  over  5,000;  Wash- 
ington —  any  city  over  20,000;   Missouri  —  any  city  over  100,000. 


426 

The  remaining  States  restrict  the  right  to  cities  and  towns 
with  a  population  ranging  from  2,000  in  Colorado  and  Okla- 
homa to  cities  of  more  than  20,000  in  Washington  and  more 
than  100,000  in  Missouri.  The  California  Constitution  grants 
home  rule  not  only  to  cities  and  to  consolidated  cities  and 
counties  but  also  to  any  independent  county,  while  in  Colorado 
special  home-rule  privileges  are  conferred  upon  the  consolidated 
city  and  county  of  Denver.^  In  the  Constitution  of  Missouri 
there  is  also  a  special  provision  applying  to  St.  Louis,  the 
largest  city  in  the  State.- 

In  this  connection  it  should  also  be  made  clear  that  the 
special  powers  of  self-government  granted  to  cities  through 
home-rule  provisions  of  the  Constitution  apply  only  to  such 
cities  as  see  fit  to  draw  up  or  amend  their  existing  charters 
in  pursuance  of  such  provisions.  All  other  cities  remain  under 
the  general  municipal  code  of  the  State  or  under  special  legis- 
lative charters.^  In  all  but  three  of  the  States  under  consid- 
eration the  only  way  in  which  a  city  may  come  under  the  home- 
rule  provision  of  the  Constitution  is  by  the  adoption  of  an 
entirely  new  charter.  Michigan,  Oregon  and  Texas,  however, 
are  exceptions  to  this  rule  and  permit  cities  to  amend  their 
existing  legislative  charters  under  the  home-rule  provision  with- 
out undertaking  a  complete  charter  revision. 

Procedure  in  Charter  Making  under  Home-Rule  Provisions. 
Board  of  Freeholders,  Method  of  Selection.  —  In  all  of  the 
home-rule  States  except  Oregon,  the  drafting  of  a  charter  is 
entrusted  to  a  body  of  citizens  usually  designated  as  a  "board 
of  freeholders"  or  "charter  commission,"  the  members  of 
which  are  popularly  elected  in  all  of  the  States  except  Minne- 
sota. The  number  of  members  is  usually  fixed  in  the  Con- 
stitution, varying  from  13  in  Missouri  to  21  in  Colorado,  while 
in  Oklahoma  2  are  elected  from  each  ward.  The  term  of  office 
expires  when  the  charter  has  been  drafted,  except  in  Minnesota, 
where  the  board  is  a  permanent  one  whose  members  may  serve 

'  Constitution  of  Colorado,  XX,  1-5. 

*  Constitution  of  Missouri,  IX,  20-25. 

'  The  Ohio  Constitution  would  seem  to  confer  upon  all  cities  in  the  State  certain  powers  of 
local  self-government,  but  the  courts  have  interpreted  that  such  powers  are  granted  only  to 
cities  which  adopt  home-rule  charters.    City  of  Toledo  r.  Lynch  (1913),  88  Ohio  State,  71. 


427 

for  such  period  as  the  Legislature  may  determine,  but  not  to 
exceed  six  years.  ^ 

In  most  States  the  election  of  the  board  of  freeholders  or 
charter  commission  is  called  by  the  city  council  or  other  legisla- 
tive authority  of  the  municipality  either  upon  its  own  initiative 
or  upon  a  petition  signed  by  a  certain  proportion  of  the  voters. 
In  seven  of  the  States,  including  Arizona,  California,  Michigan, 
Ohio,  Oklahoma,  Texas  and  Washington,  the  city  council  may 
by  ordinance  call  such  an  election,  while  the  summoning  of  an 
election  is  made  compulsory  whenever  a  petition  is  submitted 
signed  by  from  5  to  25  per  cent  of  the  qualified  voters.-  In 
Missouri  the  sole  authority  for  calling  an  election  of  a  charter 
commission  is  the  city  council,  no  provision  being  made  for 
the  popular  initiation  of  the  question. 

Thus  it  is  seen  that  in  eight  of  the  States  the  machinery  for 
drafting  a  home-rule  charter  is  placed  directly  in  operation  by 
calling  an  election  of  a  board  of  freeholders.  In  three  of  these 
eight  States  —  Arizona,  Oklahoma  and  Ohio  —  a  vote  is  taken 
separately  at  the  election  of  the  board  of  freeholders  on  the 
question  as  to  whether  proceedings  shall  be  taken  toward  fram- 
ing a  charter  and  on  the  selection  of  members.  If  the  first 
question  does  not  receive  a  majority  vote  no  further  proceed- 
ings are  taken,  of  course,  toward  drawing  up  a  charter. 

In  the  four  States  of  Colorado,  Nebraska,  Oregon  and  Minne- 
sota, however,  the  procedure  is  somewhat  different  from  that 
described  above.  In  Colorado  and  Nebraska  the  Constitution 
provides  that  instead  of  voting  directly  at  the  same  election 
on  the  question  of  framing  a  charter  and  for  the  election  of 
members  of  a  charter  commission,  a  preliminary  vote  shall  be 
taken  first  at  a  general  or  special  election  as  to  whether  or  not  a 
charter  convention  shall  be  called,  and  if  such  a  convention  is 
favored  by  a  majority  of  those  voting  thereon  the  council  is 

I  In  Arizona,  California,  Colorado,  Missouri,  Nebraska,  Ohio  and  Oklahoma  the  procedure 
for  drawing  up  a  charter  is  prescribed  in  the  Constitution.  In  Minnesota  the  constitutional  pro- 
vision prescribes  most  of  the  details  but  leaves  to  the  Legislature  the  duty  of  prescribing  by  law 
the  general  limits  within  which  a  charter  shall  be  framed.  The  Constitution  of  Washington  pro- 
vides only  for  the  initiation  of  a  charter  election  by  the  council;  popular  initiative  has  been 
provided  by  statute.  The  Constitutions  of  Michigan  and  Texas  are  completely  silent  as  to  the 
procedure  for  initiating  a  charter  proposal  and  these  matters  have  been  provided  for  entirely 
by  statute. 

»  For  percentage  of  voters  necessary  for  petition,  see  Appendix,  pp.  446-448.  Percentage  of 
signatures  is  usually  based  on  the  total  vote  cast  at  the  preceding  municipal  or  gubernatorial 
election. 


428 

then  required  to  call  a  special  election  at  a  later  date  to  choose 
members  to  the  same.^  Minnesota  follows  a  still  different  plan. 
In  that  State  the  board  of  freeholders  is  not  elected  by  the 
people  but  appointed  by  the  judge  of  the  district  court  either 
upon  his  own  initiative  or  upon  a  petition  signed  by  10  per 
cent  of  the  legal  voters. 

The  Oregon  Constitution  does  not  prescribe  the  procedure 
to  be  followed  in  drafting  a  home-rule  charter,  but  the  initia- 
tive and  referendum  provisions  of  the  Constitution  have  been 
held  to  extend  to  the  making  of  charters  and  amendments. 
Under  these  provisions  an  Oregon  municipality  may  have  its 
charter  drawn  up  either  by  the  council  or  by  the  people  through 
an  initiative  petition  and  then  submitted  directly  to  the  voters, 
thus  dispensing  with  a  special  drafting  body.^ 

Duties  of  Board  of  Freeholders;  Publicity  of  Charter.  —  Most 
of  the  State  constitutions  prescribe  the  time  within  which  the 
board  of  freeholders  must  prepare  and  propose  a  charter,  which 
varies  from  sixty  days  after  election  in  Colorado  to  one  year 
in  Ohio.^  Provisions  are  also  included  as  a  general  rule  re- 
quiring that  the  charter  shall  be  signed  by  a  majority  of  the 
members  of  the  board  and  returned  to  the  chief  executive 
officer  of  the  city  or  to  the  city  clerk  or  clerk  of  the  city  council. 
In  several  States,  such  as  Arizona  and  Oklahoma,  a  duplicate 
copy  properly  signed  must  be  sent  to  the  county  recorder  or 
registrar  of  deeds. 

The  constitutions  of  half  of  the  home-rule  States  provide 
that  copies  of  the  charter  shall  be  published  in  the  local  news- 
papers for  a  specified  number  of  times  before  it  is  voted  upon.^ 
The  Ohio  and  California  Constitutions,  however,  go  much 
farther  in  requiring  publicity  for  the  proposed  charter  and  pro- 
vide that  the  election  clerk  for  the  municipality  shall  mail  a 
copy  to  each  registered  voter. 

Ratification  and  Approval  of  Charter.  —  In  each  of  the  twelve 
States  the  proposed  charter  must  be  submitted  to  a  referendum 

*  Constitution  of  Colorado,  XX,  5. 

'  Howard  Lee  McBain,  The  Law  and  Practice  of  Municipal  Home  Rule  (New  York,  1916),  pp. 
594-596.     See  also  Oregon  Constitution,  Art.  IV,  sect.  la. 

'  Time  within  which  the  charter  commission  must  prepare  and  propose  charter:  Colorado, 
60  days  after  election;  Arizona,  Oklahoma  and  Missouri,  90  days  after  election;  California,  120 
days;    Nebraska,  4  months;   Minnesota,  6  months;   Ohio,  1  year. 

*  Arizona,  California,  Colorado,  Nebraska,  Oklahoma,  Washington. 


429 

vote  of  the  qualified  electors  at  a  general  election  if  one  is  held 
within  a  certain  length  of  time  after  completion  of  the  docu- 
ment, or  at  a  special  election  if  a  general  election  is  not  held 
within  the  specified  period.^  The  common  method  is  to  pro- 
vide that  the  election  shall  be  held  within  thirty  to  sixty  days 
after  the  publication  of  the  charter  with  the  proviso  in  several 
States  that  at  least  twenty,  thirty  or  sixty  days  must  elapse 
before  the  charter  may  be  submitted  so  as  to  give  ample  time 
for  its  consideration  by  the  voters.  In  Ohio,  however,  the  time 
for  submitting  the  charter  is  left  to  the  charter  commission  but 
must  be  within  one  year  from  the  date  of  the  election  of  the 
commission. 

As  a  general  rule  a  mere  majority  of  the  qualified  electors 
voting  on  the  charter  itself  is  sufficient  for  ratification.^  In 
Missouri  and  Minnesota,  however,  a  four-sevenths  majority  of 
the  qualified  electors  voting  at  the  election  is  required.^ 

Approval  by  State  Authorities.  —  Under  the  Constitutions  of 
eight  of  the  States  —  Colorado,  Minnesota,  Missouri,  Nebraska, 
Ohio,  Oregon,  Texas  and  Washington  —  the  charter  goes  into 
effect  within  a  certain  period  of  time  after  ratification  without 
approval  by  any  higher  authority.  In  Arizona  and  Oklahoma, 
however,  the  Constitution  requires  that  the  charter  after 
acceptance  by  the  voters  must  be  submitted  to  the  Governor 
for  his  approval,  but  the  Governor  must  approve  the  same 
unless  it  is  in  conflict  with  the  Constitution  or  laws  of  the 
State. ^  In  Michigan  on  the  other  hand  the  statute  which  has 
been  passed  regulating  home  rule  procedure  provides  that  the 
charter  shall  be  presented  to  the  Governor  prior  to  its  submis- 
sion at  the  polls  instead  of  after  ratification  by  the  voters  as  in 
the  other  two  States,  and  the  local  charter  commission  is  given 
the  power  to  override  the  Governor's  veto  by  a  two-thirds 
vote.^  Under  the  California  Constitution,  the  charter  when 
ratified  by  the  voters  is  submitted,  not  to  the  Governor,  but  to 

1  In  Oregon  council  may  draw  up  and  adopt  charter  itself  without  referring  same  to  voters 
provided  referendum  is  not  demanded. 

»  Arizona,  California,  Colorado,  Nebraska,  Ohio  and  Oklahoma  Constitutions  require  majority 
voting  on  the  charter. 

'  In  Missouri  ratification  of  charter  for  St.  Louis  requires  only  majority  of  qualified  electors 
voting  at  election.    Missouri,  IX,  20,  22,  St.  Louis. 

«  Cotislilution  of  Arizona,  XIII,  2;   Constitution  of  Oklahoma,  XVIII,  3a. 

'  Public  Acta  of  Michigan,  1909,  No.  279. 


430 

the  State  Legislature  for  approval,  with  the  limitation  that  the 
Legislature  may  not  alter  or  amend  the  charter  but  must 
accept  or  reject  it  as  a  whole.^  The  Legislature  in  California 
has  never  failed  to  ratify  a  charter  or  amendment  submitted 
to  it  for  approval,  although  in  a  few  instances  a  vigorous  fight 
for  rejection  has  been  made.  The  joint  resolutions  by  which 
these  charters  and  amendments  receive  legislative  sanction  and 
validity  have  become  in  most  instances  little  more  than  a 
formality.^  In  Oklahoma  also  there  has  been  no  exercise  of  the 
veto  power  of  the  Governor,^ 

In  submitting  a  charter  or  amendment  in  California, 
Colorado,  Minnesota,  Missouri,  Nebraska  and  Washington, 
any  alternative  article  or  section  may  be  presented  and  voted 
on  without  prejudice  to  the  other  provisions  If  the  alterna- 
tive provisions  receive  a  larger  vote  they  supersede  the  main 
sections  and  become  law. 

The  Constitutions  of  Colorado  and  Nebraska  provide  that  if 
the  proposed  charter  is  rejected  at  the  polls  another  charter 
convention  shall  be  called  to  frame  a  new  charter  which  shall 
be  published  and  submitted  in  the  same  manner  as  the  first. 
In  case  the  charter  is  again  rejected  the  process  is  repeated 
until  a  charter  is  finally  approved  by  the  voters.  This  provi- 
sion for  subsequent  charters  appears  to  relate  only  to  the  first 
charter  that  is  drawn  up  by  the  city  in  Colorado,  but  in 
Nebraska  it  applies  to  any  charter,  whether  it  be  the  first  one  or 
a  subsequent  document  or  revision.^ 

When  the  charter  has  been  ratified  and  finally  approved  by 
the  voters  or  by  the  State  authorities,  provision  is  usually  made 
that  copies  of  the  same  shall  be  signed  by  the  mayor,  city  clerk 
or  some  other  municipal  authority,  and  must  then  be  authenti- 
cated by  the  corporate  seal  and  filed  with  the  Secretary  of 
State  and  placed  in  the  archives  of  the  municipality.  In 
Arizona,  California,  Minnesota,  Missouri  and  Oklahoma  the 
Constitution  requires  that  all  courts  shall  take  judicial  notice 
of  the  charter  after  copies  have  been  authenticated  and  filed  in 
the  manner  described  above. 

'  Constitution  of  California,  XI,  7}^;   county,  XI,  8. 

2  McBain,  p.  219.    See  also  Harrison  ».  Roberts  (1904),  145  Cal.  173. 

»  Ihid.,  p.  561. 

«  Constitution  of  Colorado,  XX,  4;   Nebraska,  XIa,  3. 


431 

Charter  Amendments  and  Revision.  —  The  procedure  for 
amending  a  home-rule  charter  is  similar  to  the  method  of 
initiating  an  entirely  new  charter.  In  all  of  the  States  except 
Colorado,  Missouri  and  Minnesota  the  Constitution  or  the  laws 
that  have  been  passed  in  pursuance  of  constitutional  provisions 
stipulate  that  amendments  to  a  charter  may  be  proposed  either 
by  the  city  council  or  by  petition  of  a  certain  percentage  of  the 
voters  varying  from  5  per  cent  in  Nebraska  to  25  per  cent  in 
Arizona  and  Oklahoma.^  In  Colorado  the  sole  method  of 
initiating  amendments  is  upon  petition  of  either  5  or  10  per 
cent  of  the  voters;^  while  in  Missouri  there  is  no  provision 
for  the  popular  initiation  of  amendments  and  changes  may  be 
proposed  only  by  the  city  council.  In  Minnesota  amendments 
are  suggested  either  by  the  permanent  board  of  freeholders 
upon  their  own  initiative  or  by  a  petition  signed  by  5  per  cent 
of  the  voters.  Oregon  makes  no  provision  for  the  procedure  of 
amendment  but  it  has  been  held  that  the  initiative  and  referen- 
dum laws  are  applicable  in  such  cases. 

The  majority  required  for  the  ratification  of  an  amendment 
is  in  most  States  the  same  as  that  for  the  ratification  of  a  com- 
plete charter,  except  that  in  Missouri  and  ^Minnesota  a  three- 
fifths  majority  of  those  voting  at  the  election  is  required  for  an 
amendment  instead  of  a  four-sevenths  majority  as  required  for  a 
complete  charter.  In  those  States  where  the  approval  of  the 
Governor  or  Legislature  must  be  obtained  for  a  new  charter 
similar  approval  must  be  had  in  the  case  of  amendments.  In 
Michigan  it  is  provided  by  statute  that  the  city  council  may 
override  the  Governor's  veto  of  an  amendment  by  a  two-thirds 
vote. 

Contents  of  Charter  Provisions.  —  The  constitutions  of  several 
of  the  home-rule  States  contain  mandatory  provisions  as  to  the 
contents  of  city  charters,  some  of  which  are  of  a  positive  nature, 
requiring  the  charter  commission  to  include  certain  enumerated 
provisions  in  the  charter,  others  of  which  are  in  the  nature  of 
negative  restrictions  and  prohibit  the  framers  of  the  charter 
from  inserting  clauses  on  specified  subjects. 


'  For  percentage  required  on  petitions,  see  Appendix,  pp.  446-448. 

2  In  Colorado,  if  petition  for  charter  amendment  is  signed  by  5  per  cent  of  the  electors  voting 
at  the  last  preceding  gubernatorial  election,  the  question  is  submitted  at  a  general  election;  upon 
petition  of  10  per  cent  of  such  voters  it  is  submitted  at  a  special  election. 


432 

Among  the  mandatory  provisions  which  must  be  included  in 
a  home-rule  charter  the  most  common  requirement  is  that  the 
document  must  arrange  for  certain  essential  features  of  munici- 
pal organization.  In  Missouri,  for  example,  the  charter  shall 
provide  for  a  mayor  or  chief  executive  and  for  a  bicameral 
council,  one  branch  of  which  shall  be  elected  at  large. ^  In 
Minnesota  the  charter  must  also  provide  for  a  mayor  or  chief 
magistrate  and  a  council  of  either  one  or  two  houses.  If  the 
council  is  bicameral  at  least  one  branch  must  be  elected  at 
large.  ^ 

In  Michigan  the  home-rule  act  of  1909,  which  was  enacted  in 
pursuance  of  the  Constitution  of  1908,  requires  that  the  charter 
provide  for  a  mayor,  a  legislative  body,  a  clerk,  treasurer,  etc. 
The  document  must  also  contain  regulations  for  the  conduct  of 
elections,  and  for  a  system  of  accounts  which  shall  conform  to 
any  uniform  system  required  by  law.  The  objects  of  municipal 
taxation  must  be  the  same  as  for  State  and  county  purposes 
under  the  general  law,  and  the  tax  rate  must  not  exceed  2  per 
cent  of  the  assessed  valuation  nor  the  indebtedness  more  than 
8  per  cent  of  the  assessed  valuation.  The  city  is  also  prohibited 
from  issuing  bonds  unless  approved  by  three-fifths  of  the  voters 
and  unless  a  sinking  fund  be  provided.^ 

The  Colorado  Constitution  requires  that  the  charter  for  the 
city  and  county  of  Denver  shall  designate  officers  who  shall 
perform  the  duties  of  county  officials,  and  shall  provide  that  the 
departments  of  fire  and  police  and  of  public  utilities  and  works 
shall  be  under  civil  service  regulations,  etc.  In  addition  to  this 
requirement  which  applies  to  Denver  alone,  the  Colorado  Con- 
stitution makes  it  mandatory  upon  the  framers  of  a  charter 
in  any  city  to  provide  for  the  initiative  and  referendum  on 
municipal  ordinances,  and  prohibits  a  charter  from  diminishing 
the  tax  rate  for  State  purposes  as  fixed  by  the  Legislature  or 
from  interfering  in  any  way  with  the  collection  of  State  taxes.^ 
The  Constitution  of  Nebraska  contains  a  similar  prohibition, 
restricting   the    charter   provisions    from    interfering    with    the 

1  Constitution  of  Missouri,  IX,  17,  22.    St.  Louis  charter  may  provide  for  a  single  chamber 
council. 

2  Constitution  of  Minnesota,  IV,  36. 

'  Public  Acts  of  Michigan,  1909,  No.  279. 
*  Constitution  of  Colorado,  XX,  2-5. 


433 

collection  of  State  taxes,  and  also  requires  that  the  document 
must  provide  for  continuing,  amending  or  repealing  city  or- 
dinances.^ Under  the  Texas  Constitution  provision  is  made 
that  no  tax  for  any  purpose  shall  exceed  2^  per  cent  of  the 
taxable  property  of  the  city  and  that  no  debt  shall  be  created 
by  a  city  unless  provision  is  made  for  the  collection  annually 
of  a  sum  sufficient  to  pay  the  interest  and  create  a  sinking 
fund.2 

The  Scope  of  Municipal  Home-Rule  Powers  in  Actual  Practice 
and  the  Relation  between  Such  Powers  and  State  Laws. 

Perhaps  the  most  important  problem  connected  with  the 
subject  of  home-rule  charters  is  the  scope  of  municipal  powers 
under  such  charters  and  the  extent  to  which  charter  provisions 
are  made  subject  to  State  laws.  As  has  already  been  explained, 
home  rule  does  not  mean  that  a  city  which  has  adopted  a 
home-rule  charter  is  removed  from  the  control  of  general 
State  laws  but  merely  that  it  is  given  a  somewhat  larger  free- 
dom to  deal  with  matters  which  are  primarily  of  local  concern. 
The  problem  then  is  to  determine  where  the  line  has  been 
drawn  in  law  and  in  practice  between  matters  which  are  of 
"local  concern"  and  those  which  are  of  general  or  State  inter- 
est. These  matters  cannot  be  determined  merely  by  reference 
to  constitutional  provisions,  but  legislation  and  court  decisions 
must  be  taken  into  consideration  in  each  State. 

In  the  preceding  analysis  of  home-rule  provisions  it  was 
pointed  out  that  the  constitutions  of  ten  of  the  States  expressly 
declare  in  one  form  or  another  that  the  self-governing  powers 
conferred  upon  home-rule  cities  shall  as  a  whole  or  in  part  be 
subject  to  the  "general  laws"  of  the  State.^  As  a  general  rule 
no  attempt  is  made  in  these  States  to  define  what  specific  power 
a  city  may  exercise  without  coming  into  conflict  with  State 
laws,  and  judicial  decisions  must  be  looked  to  for  an  interpreta- 
tion of  these  matters.    One  finds,  therefore,  a  wide  variation  in 

*  Constitution  of  Nebraska,  XIo,  3-4. 

*  Constitution  of  Texas,  XI,  5. 

'  In  Arizona,  Michigan,  Missouri,  Minnesota,  Nebraska,  Oklahoma,  Texas  and  Washington, 
charters  must  be  in  conformance  with  either  "laws"  or  "general  laws"  of  the  State.  In  Ohio, 
police,  sanitary  and  similar  regulations  must  be  in  compliance  with  general  laws.  In  California 
self-governing  powers  must  conform  to  general  laws  except  in  "municipal  affairs."  In  Colorado 
and  Oregon  there  is  no  requirement  that  the  charter  shall  be  subject  to  the  general  laws. 


434 

some  States  between  the  grant  of  power  in  the  constitutional 
provision  and  the  exercise  of  that  power  in  actual  practice.  The 
reason  for  this  is  that  the  Legislature  in  each  State  has  exer- 
cised a  different  degree  of  power  over  municipalities  even 
though  constitutional  restrictions  may  read  the  same,  and  that 
when  grants  of  power  have  been  general  or  indefinite  the 
courts  have  interpreted  powers  differently. 

Scope  of  Home  Rule  in  Missouri.  —  The  case  of  Missouri  is 
interesting  as  illustrating  the  manner  in  which  legislative  en- 
actments and  court  decisions  have  affected  the  exercise  of 
home-rule  privileges  and  powers  to  a  very  large  degree.  In 
common  with  most  of  the  other  States  the  Missouri  Con- 
stitution contains  a  provision  which  expressly  declares  that  a 
home-rule  charter  shall  always  be  in  harmony  with  and  "  subject 
to  the  Constitution  and  the  laws  of  the  State." ^  Special  legis- 
lation is  elsewhere  prohibited  in  the  Constitution,  but  as  both 
of  the  home-rule  cities,  St.  Louis  and  Kansas  City,  are  in  a 
single  class,  the  limitation  against  special  legislation  is  of  no 
consequence  and  in  practice  the  Legislature  may  enact  any 
special  laws  it  sees  fit  applying  to  these  two  home-rule  cities.^ 
Since  the  wording  of  the  Missouri  constitutional  provision  is 
in  very  general  terms  the  question  has  arisen  as  to  what  are 
the  laws  of  the  State  with  which  a  charter  may  not  come  into 
conflict.  In  the  various  cases  that  have  come  before  the  courts 
in  Missouri,  charter  provisions  have  been  held  void  when  they 
came  into  conflict  with  State  laws  regarding  police,  liquor 
licenses,  elections,  taxation,  assessments,  the  rights  of  persons 
against  the  city,  etc.  But  on  the  other  hand  the  courts  have 
held  that  charter  provisions  supersede  State  laws  in  regard  to 
control  of  parks,  street  improvements,  removal  of  municipal 
officers,  etc.^  Because  of  the  rather  vague  provision  in  the 
Constitution,  cities  are  under  the  necessity  of  looking  to  the 
courts  for  a  distinction  between  municipal  affairs  and  matters 
of  State  concern 

Scope  of  Home-Rule  Power  in  Washington.  —  In  Washington, 
where  the  constitutional  provision  is  practically  the  same  as 
that  of  Missouri,  the  courts  have  not  established  a  distinction 

1  Constitution  of  Missouri,  Art.  IX,  sects.  16,  20. 

s  McBain,  p.  124.    Also  case  of  McCaffrey  v.  Mason  (1899),  155  Mo.  486. 

•  Ibid.,  pp.  133-171. 


435 

between  State  and  local  affairs,  but  municipalities  nevertheless 
enjoy  a  considerable  degree  of  home  rule  "due  to  the  liberal 
practice  of  the  Legislature  in  conferring  powers  and  in  refrain- 
ing from  occupying  fields  of  municipal  control."  ^ 

Scope  of  Home-Rule  Powers  in  Minnesota,  Michigan  and 
Texas.  —  Minnesota,  Michigan  and  Texas  afford  examples  of 
States  in  which  the  home-rule  provisions  of  the  Constitution 
contain  merely  general  grants  of  power  and  give  to  the  Legis- 
lature the  power  of  working  out  the  machinery  or  limitations 
under  which  charters  are  to  be  framed  and  also  to  determine 
the  powers  of  cities,  the  character  of  their  government  and  the 
like.  According  to  the  Constitution  of  Minnesota,  for  example, 
cities  are  given  only  a  limited  power  of  home  rule,  and  such 
home  rule  as  does  exist  in  that  State  "is  referable  more  largely 
to  the  dispensation  of  the  Legislature  than  to  any  protection 
guaranteed  by  the  Constitution."-  In  Michigan  and  Texas 
it  was  necessary  for  the  Legislature  to  pass  enabling  acts  before 
cities  could  exercise  their  home-rule  powers.^ 

Scope  of  Home-Rule  Poivers  in  California  and  Colorado.  — 
California  and  Colorado  have  followed  a  somewhat  different 
method  of  granting  home-rule  powers  than  most  of  the  States 
and  have  included  in  their  Constitutions  provisions  which  en- 
deavor to  define  more  clearly  the  relation  between  home-rule 
powers  and  State  laws.  The  California  Constitution  provides 
that  a  home-rule  charter  may  authorize  the  municipality  gov- 
erned thereunder  to  "make  and  enforce  all  laws  and  regulations 
in  respect  to  municipal  affairs,  subject  only  to  the  restrictions 
and  limitations  provided  in  their  several  charters."  ^  Local 
ordinances  and  regulations  are,  therefore,  subject  to  general 
laws  only  when  they  deal  with  matters  outside  the  realm  of 
"municipal  affairs."  The  California  Constitution  does  not  stop 
here  but  goes  on  to  enumerate  the  most  important  "municipal 
affairs"  that  a  charter  may  provide  for,  the  provision  being 
that  the  charter  may  authorize  (1)  the  establishment  and  regu- 
lation of  police  and  municipal  courts,  and  for  the  election  of 
judges  of  such  courts;    (2)  for  election,  term,  etc.,  of  boards  of 

1  McBain,  p.  456. 

2  Ibid.,  p.  497. 

'  Public  Acts  of  Michigan,  1909,  No.  279;    Laws  of  Texas,  1913,  Chap.  147. 
*  Constitution  of  California,  XI,  8. 


436 

education;  (3)  for  term,  election  or  appointment  of  boards 
of  police  commissioners;  (4)  for  the  holding  of  municipal 
elections;    (5)  for  the  annexation  of  territory,  etc.^ 

Thus  it  is  seen  that  the  California  Constitution,  by  enumerat- 
ing the  provisions  which  a  charter  may  contain,  defines  more 
definitely  the  scope  of  the  powers  which  a  home-rule  city  may 
exercise  and  makes  it  easier  to  determine  what  are  included 
among  those  "municipal  affairs"  which  can  be  regulated  by  the 
city  without  coming  into  conflict  with  the  laws  of  the  State. 

Colorado,  as  has  been  pointed  out,  is  the  only  State  except 
Oregon  which  does  not  expressly  require  that  the  provisions  of 
a  home-rule  charter  shall  be  subject  to  general  laws,  thus  giving 
cities  a  larger  degree  of  self-government  than  in  other  States. 
The  Constitution  was  also  amended  in  1912  so  as  to  enumerate 
in  even  greater  detail  than  the  California  Constitution  the 
powers  that  may  be  exercised  by  a  home-rule  cit}';  the  most 
important  of  such  powers  being:  (1)  the  creation  and  terms  of 
municipal  officers,  their  powers,  duties,  etc.;  (2)  the  creation 
of  municipal  and  police  courts;  (3)  all  matters  pertaining  to 
municipal  elections;  (4)  the  issuance,  refunding  and  liquidating 
of  all  kinds  of  municipal  obligations,  the  assessment,  levy  and 
collection  of  taxes,  etc.  It  is  expressly  stipulated  that  the 
purpose  of  the  home-rule  article  is  "to  grant  and  confirm  to 
the  people  of  all  municipalities,  coming  within  its  provisions  the 
full  right  of  self-government  ...  in  municipal  affairs"  and  that 
the  enumeration  of  certain  powers  is  not  to  be  construed  to 
deny  such  cities  and  towns  any  power  essential  to  the  exercise 
of  the  right  of  self-government.^  As  a  result  of  these  provisions 
a  city  may  not  only  regulate  ordinary  matters  of  local  and 
municipal  concern  through  the  medium  of  its  charter  but  may 
also  exercise  certain  powers  that  are  enumerated  in  the  Con- 
stitution and  which  might  otherwise  be  regarded  as  falling 
within  the  jurisdiction  of  the  State  Legislature.  Whenever  the 
charter  is  silent,  however,  as  to  a  matter  of  either  State  or  local 
concern,  the  courts  have  decided  that  a  State  law  regulating  the 
subject  will  apply.  All  things  considered,  the  Constitution  of 
Colorado,    by   means   of   a   broad   general   grant   of   authority 

>  Constitution  of  California,  XI,  8H. 

*  Constitution  of  Colorado,  XX,  6  (Amendment  of  1912). 


437 

supplemented  by  a  rather  detailed  enumeration  of  the  express 
powers  which  a  home-rule  city  may  exercise,  allows  to  cities  a 
somewhat  larger  amount  of  self-government  than  that  of  any 
other  commonwealth  except  California. 

Conclusion  as  to  Extent  of  Home-Rule  Powers  in  the  Various  States. 
The  foregoing  sketch  indicates  that  the  actual  practice  of 
home  rule  in  any  State  is  determined  not  only  by  constitutional 
provisions,  but  also  by  legislative  enactments  supplementary 
to  the  constitution  and  by  judicial  decisions  which  mark  the 
line  between  State  and  local  functions.  Since  there  is  a  wide 
difference  of  opinion  as  to  what  matters  are  of  purely  municipal 
concern  and  what  are  of  such  State-wide  interest  as  to  demand 
State  regulation,  it  would  seem  that  the  more  vague  the  terms 
in  the  constitution,  the  less  definite  is  the  result  to  be  ex- 
pected. In  framing  a  home-rule  provision  the  experience  of 
other  States  would  appear  to  favor,  therefore,  the  inclusion  of 
at  least  a  broad  distinction  between  State  and  local  functions  so 
as  to  indicate  in  a  general  way  wdiat  subjects  are  to  be  left 
under  the  jurisdiction  of  the  Legislature,  and  what  are  to  be 
handed  over  to  local  control.^ 

IV.  Optional  Charter  Laws. 
The  most  recent  method  of  allowing  a  certain  degree  of 
elasticity  in  the  granting  of  municipal  charters  without  going 
so  far  as  to  provide  for  complete  home  rule  has  been  the  op- 
tional charter  system  which  is  found  in  the  five  States  of 
Massachusetts,  New  York,  North  Carolina,  Ohio  and  Virginia. 
In  each  of  these  States  the  Legislature  has  passed  a  law  outlin- 
ing three  or  more  forms  of  government  and  permitting  a  city  to 
adopt  any  one  of  these  plans  by  popular  vote.  Ohio  and  New 
York  were  the  first  to  establish  such  a  system,  the  Ohio  law  of 
1913  providing  three  plans  of  government,  —  commission  form, 
the  city  manager  plan,  and  the  "federal"  or  mayor  and  council 
form,  —  any  one  of  which  may  be  adopted  at  a  special  election 
called  upon   petition   of   10  per  cent  of  the  voters.^     It  is  of 

•  For  a  summary  of  the  model  home-rule  provision  recommended  by  the  Committee  on 
Municipal  Program  of  the  National  Municipal  League,  see  Appendix,  p.  4-13. 
«  Laws  of  Ohio,  1913,  pp.  767-786. 


438 

interest  to  note  that  Ohio  is  also  one  of  the  twelve  States 
that  has  provided  for  home  rule  and  that  the  optional  charter 
scheme  is  intended  for  those  cities  which  do  not  avail  them- 
selves of  the  privilege  of  drawing  up  their  own  charters.  The 
experience  so  far  in  Ohio  indicates  that  the  cities  prefer  the 
home-rule  system  of  obtaining  charters  as  very  few  of  them 
have  come  under  the  provision  of  the  optional  charter  law. 

The  New  York  optional  charter  law  was  also  adopted  in  1913 
and  provides  that  any  city  except  the  three  largest  (New  York, 
Buffalo  and  Rochester)  may  adopt  any  one  of  the  following  six 
forms  of  charter:^  — 

Plan  A.  Limited  council  (commission  form).  Three  or  five  members 
including  mayor  elected  at  large.  One  member  at  head  of  each  depart- 
ment. 

Plan  B.  Limited  council  with  collective  supervision.  Three  or  five 
members  including  mayor  elected  at  large.  Individual  members  of 
council  do  not  serve  as  heads  of  departments  but  subordinates  are  ap- 
pointed for  this  purpose. 

Plan  C.     Limited  council  with  city  manager. 

Plan  D.  Separate  executive  and  legislative  departments.  Mayor  and 
council  of  five. 

Plan  E.  Legislative  department  consisting  of  nine  councilmen  elected 
at  large. 

Plan  F.     Legislative  department  consisting  of  councilmen  elected  at  large. 

In  a  recent  case  Justice  Emerson  of  the  New  York  State 
Supreme  Court  declared  the  optional  city  government  law  of 
that  State,  so  far  as  applicable  to  the  city  of  Watertown,  to  be 
unconstitutional  and  enjoined  the  organization  of  the  city  under 
the  provisions  of  that  act.  Watertown  had  just  adopted  the 
city  manager  plan  under  the  optional  charter  law,  and  it  is 
stated  that  if  this  decision  is  adhered  to  municipalities  with  the 
city-manager  type  of  government  may  have  to  revert  to  the  old 
plans  of  organization  and  that  the  optional  charter  law  as  a 
w^hole  may  be  invalid.^ 

The  most  recent  States  to  provide  optional  charter  acts  were 
Virginia  and  Massachusetts  in  1914-15  and  North  Carolina  in 
1917.^     Under  the  Massachusetts  law  any  city  except  Boston 

'  Laws  of  New  York,  1913,  Chap.  444. 

'  Municipal  Journal,  April  5,  1917,  p.  501.  "City  Manager  Charters  Declared  Unconstitu- 
tional." 

•  General  Acts  of  Massachusetts,  1915,  Chap.  267.  For  further  description  of  the  Massachu- 
setts optional  charter  law  see  post,  p.  439.    For  Virginia  law,  see  Laws  of  Virginia,  1914,  Chap.  94. 


439 

may  adopt  either  a  scheme  of  government  which  provides  for  a 
mayor  and  a  council  elected  at  large  or  one  in  which  the  chief 
governing  authorities  are  a  mayor  and  a  council  elected  partly 
from  wards  or  partly  at  large,  or  it  may  adopt  the  commis- 
sion form  of  government  or  the  city-manager  plan. 

V.  The  Relation  between  the  City  and  the  State  in 
Massachusetts. 

In  conclusion  something  should  be  said  of  the  existing  situa- 
tion in  Massachusetts.  Municipalities  in  Massachusetts  derive 
their  charters  and  all  their  powers  from  the  State  Legislature, 
the  Constitution  specifically  providing  that  the  General  Court 
shall  have  full  power  in  granting  and  annulling  charters  except 
that  towns  under  twelve  thousand  may  not  be  incorporated  as 
cities  and  that  no  town  shall  be  created  as  a  city  without  the 
consent  of  a  majority  of  the  inhabitants.^ 

Massachusetts  has  until  recently  followed  exclusively  the 
practice  of  incorporating  cities  and  providing  for  their  powers 
by  special  acts,  and  there  is  no  general  municipal  code  applicable 
to  all  cities.  This  system  has  resulted  in  separate  charters  for 
each  city,  no  two  of  which  are  alike.  Petitions  for  new  charters 
or  for  amendments  to  existing  ones  are  sent  to  the  Legislature 
every  year  by  a  large  number  of  cities  and  some  cities  send 
two  or  three  alternative  proposals.  The  special  laws  relating  to 
Boston  actually  passed  from  1885  to  1908  were  no  less  than 
four  hundred  in  number  and  fill  a  volume  of  600  pages.^ 

With  a  view  to  relieving  themselves  of  this  burden  the  Gen- 
eral Court,  as  has  already  been  noted,  enacted  in  1915  an 
optional  charter  law  which  provides  that  any  city  except  Boston 
may  adopt  any  one  of  the  following  forms  of  government:^  — 

Plan  A,  providing  for  a  mayor  and  nine  councillors  elected  at  large. 
Plan  B,  pro\'iding  for  a  mayor  and  a  number  of  councillors  not  exceeding 

fifteen,  part  to  be  elected  at  large  and  part  from  wards. 
Plan  C,  providing  for  commission  government  with  a  council  of  five 

members. 
Plan  D,  providing  for  the  city-manager  plan  with  a  council  of  five. 

*  Constitution  of  Massachusetts,  Art.  II  of  Amendments. 

»  Statutes  relating  to  City  of  Boston  (ed.  T.  M.  Babson,  Boeton,  1908). 

•  General  Acts  of  Massachusetts,  1916,  Chap.  267. 


440 


The  procedure  for  adopting  one  of  the  above  plans  of  govern- 
ment may  be  initiated  by  petition  of  at  least  ten  per  cent  of 
the  registered  voters  of  the  town  or  city.  An  election  is  then 
called  and  if  a  majority  voting  on  the  question  are  in  favor  of 
the  proposal  the  city  is  organized  under  the  new  plan.  While 
the  frame  of  government  differs  under  each  scheme  certain 
provisions  of  general  concern  are  applicable  to  all  four  plans. 

At  the  present  time,  therefore,  cities  in  Massachusetts  may 
obtain  new  charters  or  charter  amendments  by  special  act  from 
the  Legislature,  or  they  may  adopt  one  of  the  plans  of  the 
optional  charter  law,  Cambridge,  with  a  population  of  about 
one  hundred  and  twelve  thousand,  is  the  largest  city  in  the 
State  operating  under  one  of  the  optional  forms. 


441 


Appendix  A. 


Home-Rule  Provisions  of  State  Constitutions. 
Ohio,  Article  XVI 11,  Sec.  3,  7. 

Sec.  3.  Municipalities  shall  have  authority  to  exercise  all  powers  of 
local  self-government  and  to  adopt  and  enforce  -nithin  their  limits  such 
local  police,  sanitarj^  and  other  similar  regulations,  as  are  not  in  conflict 
with  the  general  laws.    (Adopted  Sept.  3,  1912.) 

Sec.  7.  Any  municipality  ma}^  frame  and  adopt  or  amend  a  charter 
for  its  government  and  may,  subject  to  the  provisions  of  section  3  of  this 
article,  exercise  thereunder  all  powers  of  local  self-government.  (Adopted 
Sept.  3,  1912.) 

Michigan,  Article  VIII,  Sec.  21,  22,  23. 

Sec.  21.  Under  such  general  laws,^  the  electors  of  each  city  and  vil- 
lage shall  have  power  and  authority  to  frame,  adopt  and  amend  its  char- 
ter, and  to  amend  an  existing  charter  of  the  city  or  village  heretofore 
granted  or  passed  by  the  Legislature  for  the  government  of  the  city  or 
\dllage  and,  through  its  regularlj^  constituted  authority,  to  pass  all  laws 
and  ordinances  relating  to  its  municipal  concerns,  subject  to  the  Con- 
stitution and  general  laws  of  this  State. 

Sec.  22.  Any  city  or  village  maj^  acquire,  o"mi,  establish  and  main- 
tain, either  ■n'ithin  or  without  its  corporate  limits,  parks,  boulevards, 
cemeteries,  hospitals,  almshouses  and  all  works  which  involve  the  public 
health  or  safety. 

Sec.  23.  Subject  to  the  provisions  ofjthis  Constitution,  any  city  or 
village  may  acquire,  own  and  operate,  either  witliin  or  \\'ithout  its  cor- 
porate limits,  public  utilities  for  supphang  water,  light,  heat,  power  and 
transportation  to  the  municipality  and  the  inhabitants  thereof;  and  may 
also  sell  and  deliver  water,  heat,  power  and  light  without  its  corporate 
limits  to  an  amount  not  to  exceed  twenty-five  per  cent  of  that  furnished 
by  it  'nithin  the  corporate  limits;  and  may  operate  transportation  lines 
without  the  municipality  within  such  limits  as  may  be  prescribed  by  law: 
Provided,  Tliat  the  right  to  own  or  operate  transportation  facilities  shall 
not  extend  to  any  city  or  village  of  less  than  twenty-five  thousand  in- 
habitants. 

'  General  laws  referred  to  are  those  enacted  by  the  Legislature  for  the  incorporation  of  cities. 


442 


Oklahoma,  Article  XV III,  Sec.  3  (a),  3  (6). 

Sec.  3.  (a)  Any  city  containing  a  population  of  more  than  two  thou- 
sand inhabitants  may  frame  a  charter  for  its  own  government,  consistent 
with  and  subject  to  the  Constitution  and  laws  of  this  State,  by  causing 
a  board  of  freeholders,  composed  of  two  from  each  ward,  who  shall  be 
quahfied  electors  of  said  city,  to  be  elected  by  the  qualified  electors  of  said 
city,  at  any  general  or  special  election,  whose  duty  it  shall  be,  within 
ninety  days  after  such  election,  to  prepare  and  propose  a  charter  for  such 
city,  which  shall  be  signed  in  duplicate  by  the  members  of  such  board  or  a 
majority  of  them,  and  returned,  one  copy  of  said  charter  to  the  chief 
executive  officer  of  such  city,  and  the  other  to  the  register  of  deeds  of  the 
county  in  which  the  said  city  shall  be  situated.  Such  proposed  charter 
shall  then  be  published  in  one  or  more  newspapers  published  and  of  general 
circulation  within  said  city,  for  at  least  twenty-one  days,  if  in  a  daily 
paper,  or  in  three  consecutive  issues,  if  in  a  weekly  paper,  and  the  first 
publication  shall  be  made  ■udthin  twenty  days  after  the  completion  of 
the  charter;  and  witliin  thirty  days,  and  not  earlier  than  twenty  days 
after  such  publication,  it  shall  be  submitted  to  the  qualified  electors  of 
said  city  at  a  general  or  special  election,  and  if  a  majority  of  such  qual- 
ified electors  voting  thereon  shall  ratify  the  same,  it  shall  thereafter  be 
submitted  to  the  Governor  for  his  approval,  and  the  Governor  shall 
approve  the  same  if  it  shall  not  be  in  conflict  with  the  Constitution  and 
laws  of  this  State.  Upon  such  approval  it  shall  become  the  organic  law 
of  such  city  and  supersede  any  existing  charter  and  all  amendments 
thereof  and  all  ordinances  inconsistent  with  it.  A  copy  of  such  charter, 
certified  by  the  chief  executive  officer,  and  authenticated  by  the  seal  of 
such  city,  setting  forth  the  submission  of  such  charter  to  the  electors  and 
its  ratification  by  them  shall,  after  the  approval  of  such  charter  by  the 
Governor,  be  made  in  duplicate  and  deposited,  one  in  the  office  of  the 
Secretary  of  State,  and  the  other,  after  being  recorded  in  the  office  of 
said  register  of  deeds,  shall  be  deposited  in  the  archives  of  the  city;  and 
thereafter  all  courts  shall  take  judicial  notice  of  said  charter.  The 
charter  so  ratified  may  be  amended  by  proposals  therefor,  submitted  by 
the  legislative  authority  of  the  city  to  the  qualified  electors  thereof  (or 
by  petition  as  hereinafter  provided)  at  a  general  or  special  election,  and 
ratified  by  a  majority  of  the  qualified  electors  voting  thereon,  and  approved 
by  the  Governor  as  herein  provided  for  the  approval  of  the  charter. 

Sec.  3.  (b)  An  election  of  such  board  of  freeholders  may  be  called  at 
any  time  by  the  legislative  authority  of  any  such  city,  and  such  election 
shall  be  called  by  the  chief  executive  officer  of  any  such  city  within  ten 
days  after  there  shall  have  been  filed  with  him  a  petition  demanding  the 
same,  signed  by  a  number  of  qualified  electors  residing  within  such  city, 
equal  to  twenty-five  per  centum  of  the  total  number  of  votes  cast  at  the 
next  preceding  general  municipal  election;  and  such  election  shall  be 
held  not  later  than  thirty  days  after  the  call  therefor.    At  such  election  a 


,     443 

vote  shall  be  taken  upon  the  question  of  whether  or  not  further  pro- 
ceedings toward  adopting  a  charter  shall  be  had  in  pursuance  to  the 
call,  and  unless  a  majority  of  the  qualified  electors  voting  thereon  shall 
vote  to  proceed  further,  no  further  proceedings  shall  be  had,  and  all  pro- 
ceedings up  to  that  time  shall  be  of  no  effect. 

Oregon,  Article  XI,  Sec.  2. 
Sec.  2.  Corporations  Formed  Under  General  Law,  Not  Special  — 
Municipal  Charters  Enacted  Only  By  People.  Corporations  may  be  formed 
under  general  laws,  but  shall  not  be  created  by  the  Legislative  Assembly 
by  special  laws.  The  Legislative  Assembly  shall  not  enact,  amend  or 
repeal  any  charter  or  act  of  incorporation  for  any  municipaUty,  city  or 
town.  The  legal  voters  of  every  city  and  town  are  hereby  granted  power 
to  enact  and  amend  their  municipal  charter,  subject  to  the  Constitution 
and  criminal  laws  of  the  State  of  Oregon,  and  the  exclusive  power  to 
license  therein  is  vested  in  such  municipality;  but  such  municipality  shall 
within  its  limits  be  subject  to  the  provisions  of  the  local  option  law  of 
the  State  of  Oregon. 

Note.  —  The  foregoing  section  was  proposed  by  initiative  petition 
filed  June  23,  1910,  and  adopted  by  vote  of  the  people,  96,116  for  and 
77,671  against,  November  3,  1910. 


444 


Appendix  B 


Home-Rule  Constitutional  Provision  recommended  by  the  Com- 
mittee ON  Municipal  Program  of  the  National  Municipal 
League. 

Section  1.  Incorporation  and  Organization.  Provision  shall  be  made 
by  a  general  law  for  the  incorporation  of  cities  and  villages;  and  by  a 
general  law  for  the  organization  and  government  of  cities  and  villages 
which  do  not  adopt  laws  or  charters  in  accordance  with  the  provisions  of 
Sections  2  and  3  of  this  article. 

Section  2.  O-ptional  Laws.  Laws  may  be  enacted  affecting  the  or- 
ganization and  government  of  cities  and  villages,  which  shall  become 
effective  in  any  city  or  village  only  when  submitted  to  the  electors  thereof 
and  approved  by  a  majority  of  those  voting  thereon. 

Section  3.  City  Charters.  Any  city  may  frame  and  adopt  a  charter 
for  its  owTi  government  in  the  following  manner.  The  legislative  au- 
thority of  the  city  may  by  a  two-thirds  vote  of  its  members,  and,  upon 
the  petition  of  ten  per  centum  of  the  qualified  electors,  shall  forthwith 
provide  by  ordinance  for  the  submission  to  the  electors  of  the  question: 
"Shall  a  commission  be  chosen  to  frame  a  charter?"  The  ordinance 
shall  require  that  the  question  be  submitted  to  the  electors  at  the  next 
regular  municipal  election,  if  one  shall  occur  not  less  than  sixty  nor  more 
than  one  hundred  and  twenty  days  after  its  passage,  otherwise,  at  a 
special  election  to  be  called  and  held  within  the  time  aforesaid;  the 
ballot  containing  such  question  shall  also  contain  the  names  of  candi- 
dates for  members  of  the  proposed  commission,  but  ■\\ithout  party 
designation. 

Such  candidates  shall  be  nominated  by  petition  wliich  shall  be  signed 
by  not  less  than  two  per  cent  of  the  qualified  electors,  and  be  filed  with 
the  election  authorities  at  least  thirty  days  before  such  election;  provided, 
that  in  no  case  shall  the  signature  of  more  than  one  thousand  (1,000) 
qualified  electors  be  required  for  the  nomination  of  any  candidate.  If  a 
majority  of  the  electors  voting  on  the  question  of  choosing  a  commission 
shall  vote  in  the  affirmative,  then  the  fifteen  candidates  receiving  the 
highest  number  of  votes  (or  if  the  legislative  authority  of  the  state  pro- 
vides by  general  law  for  the  election  of  such  commissioners  by  means  of 
a  preferential  ballot  or  proportional  representation  or  both,  then  the 
fifteen  chosen  in  the  manner  required  by  such  general  law)  shall  con- 
stitute the  charter  commission  and  shall  proceed  to  frame  a  charter. 


445 

Any  charter  so  framed  shall  be  submitted  to  the  qualified  electors  of 
the  city  at  an  election  to  be  determined  by  the  charter  commission,  which 
shall  be  at  least  thirty  days  subsequent  to  its  completion  and  distribu- 
tion among  the  electors  and  not  more  than  one  j'-ear  from  the  date  of  the 
election  of  the  charter  commission.  Alternative  provisions  may  also  be 
submitted  to  be  voted  upon  separately.  The  commission  shall  make 
provision  for  the  distribution  of  copies  of  the  proposed  charter  and  of 
any  alternative  provisions  to  the  qualified  electors  of  the  city  not  less 
than  thirty  days  before  the  election  at  which  it  is  voted  upon.  Such 
proposed  charter  and  such  alternative  provisions  as  are  approved  by  a 
majority  of  the  electors  voting  thereon  shall  become  the  organic  law  of 
such  city  at  such  time  as  may  be  fixed  therein,  and  shall  supersede  any 
existing  charter  and  all  laws  affecting  the  organization  and  government 
of  such  city  which  are  in  conflict  therewith.  Within  thirty  days  after  its 
approval  the  election  authorities  shall  certify  a  copy  of  such  charter  to 
the  Secretary  of  State,  who  shall  file  the  same  as  a  pubHc  record  in  his 
ofl&ce,  and  the  same  shall  be  published  as  an  appendix  to  the  session  laws 
enacted  by  the  legislature. 

Section  4.  Amendments.  Amendments  to  any  such  charter  may  be 
framed  and  submitted  by  a  charter  commission  in  the  same  manner  as 
provided  in  section  3  for  framing  and  adopting  a  charter.  Amendments 
may  also  be  proposed  by  two-thirds  of  the  legislative  authority  of  the 
city,  or  by  petition  of  ten  per  cent,  of  the  electors;  and  any  such  amend- 
ment, after  due  public  hearing  before  such  legislative  authority,  shall  be 
submitted  at  a  regular  or  special  election  as  is  provided  for  the  submission 
of  the  question  of  choosing  a  charter  commission.  Copies  of  all  proposed 
amendments  shall  be  sent  to  the  qualified  electors.  Any  such  amend- 
ment approved  by  a  majority  of  the  electors  voting  thereon  shall  become 
a  part  of  the  charter  of  the  city  at  the  time  fixed  in  the  amendment  and 
shall  be  certified  to  and  filed  and  published  by  the  Secretary  of  State  as 
in  the  case  of  a  charter. 

Section  5.  Powers.  Each  city  shall  have  and  is  herebj^  granted  the 
authority  to  exercise  all  powers  relating  to  municipal  affairs;  and  no 
enumeration  of  powers  in  this  constitution  or  any  law  shall  be  deemed  to 
limit  or  restrict  the  general  grant  of  authority  hereby  conferred;  but  this 
grant  of  authority  shall  not  be  deemed  to  limit  or  restrict  the  power  of 
the  legislature,  in  matters  relating  to  state  affairs,  to  enact  general  laws 
applicable  alike  to  all  cities  of  the  State. 

The  follo^\ang  shall  be  deemed  to  be  a  part  of  the  powers  conferred 
upon  cities  by  this  section :  — 

(a)  To  levy,  assess  and  collect  taxes  and  to  borrow  money,  witliin  the 
limits  prescribed  by  general  law;  and  to  levy  and  collect  special  assess- 
ments for  benefits  conferred; 

(6)  To  furnish  all  local  public  services;  to  purchase,  hire,  construct, 
own,  maintain,  and  operate  or  lease  local  public  utilities;  to  acquire,  by 
condemnation  or  otherwise,  within  or  without  the  corporate  limits,  prop- 


446 

erty  necessary  for  any  such  purposes,  subject  to  restrictions  imposed  by 
general  law  for  the  protection  of  other  communities;  and  to  grant  local 
public  utility  francliises  and  regulate  the  exercise  thereof; 

(c)  To  make  local  public  improvements  and  to  acquire,  by  condemna- 
tion or  otherwise,  property  within  its  corporate  limits  necessary  for  such 
improvements;  and  also  to  acquire  an  excess  over  that  needed  for  any 
such  improvement,  and  to  sell  or  lease  such  excess  property  with  re- 
strictions, in  order  to  protect  and  preserve  the  improvement; 

(d)  To  issue  and  sell  bonds  on  the  security  of  any  such  excess  property, 
or  of  any  pubHc  utility  owned  by  the  city,  or  of  the  revenues  thereof,  or 
of  both,  including  in  the  case  of  a  public  utility,  if  deemed  desirable  by 
the  city,  a  franchise  stating  the  terms  upon  wlaich,  in  case  of  foreclosure, 
the  purchaser  may  operate  such  utility. 

(e)  To  organize  and  administer  public  schools  and  libraries,  subject  to 
the  general  laws  establishing  a  standard  of  education  for  the  State. 

(/)  To  adopt  and  enforce  within  its  limits  local  pohce,  sanitary  and 
other  similar  regulations  not  in  conflict  with  general  laws. 


447 


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Three-fifths  of  those 
voting  at  a  general  or 
special  election. 

Same  as  imder  II. 

Majority  voting  there- 
on at  a  general  elec- 
tion but  charter  may 
pro\'ide  at  a  special 
election. 

Three-fifths  of  those 
voting  at  a  general  or 
special  election. 

d 
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1 

a 

Council  may  propose. 

May    be    proposed    by 
council  or  by  petition 
of  15  per  cent  of  voters. 

May    be    proposed    by 
council  or   by   15  per 
cent  petition  or  char- 
ter may  provide. 

May    be    proposed    by 
board    of    freeholders 
or  by  petition  of  5  per 
cent  of  voters. 

o 

H 
■< 

o 

s 

E- 

i 

p. 

0. 

< 

o 

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None. 

Concurrent  resolution 
of  absolute  majority 
in  State  Legislature. 
Legislature  may  not 
amend. 

None. 

None. 

"3 
g. 

Four-sevenths  of  those 
voting  at  a  general  or 
special  election. ' 

Majority  voting  thereon 
at  a  general  or  special 
election. 

Majority  voting  thereon 
at  a  general  or  special 
election. 

Four-sevenths   of  those 
voting  at  a  general  or 
special  election.  * 

e 
c 

! 

i 

>r 
K 

3     . 

By  ordinance  of  council 
calling  for  election  of 
freeholders. ' 

Two-thirds  vote  of  coun- 
cil calling  election  of 
freeholders;  compul- 
sory upon  petition  of 
15  per  cent  of  voters. 

By  ordinance  of  council 
calling  e.ection  of  free- 
holders ;  compulsory 
upon  petition  of  25  per 
cent  of  voters. 

Judge  of  district  court 
may  appoint  freehold- 
ers; compulsory  upon 
petition  of  10  per  cent 
of  voters.  * 

H 

■< 

03 

Missouri  (1875). 
California  (1879). 

Washington  (1889). 

Minnesota  (1896). 

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Majority  voting  there- 
on at  a  general  elec- 
tion; but  if  by  peti- 
tion of  10  per  cent  at 
a  special  election. 

Same  as  under  II. 

Same  as  under  II. 

Same  as  under  II,  ex- 
cept that  Governor's 
veto    may    be    over- 
ridden by  two-thirds 
vote  of  council. 

Same  as  under  II. 

c 
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May  be  proposed  only 
on   petition   of  5   per 
cent  of  voters. 

Same  as  under  I. 

Council    may    propose; 
or    by   petition  of   25 
per  cent  of  voters. 

Council  may  propose  by 
two-thirds  vote;  or  by 
petition  of  25  per  cent 
of  voters. 

May    be    proposed    by 
council  or  by  petition 
of  25  per  cent  of  voters. 

o 
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None. 

None. 

Governor  must  approve 
if  not  in  conflict  with 
State  Constitution  and 
laws. 

Governor  must  approve 
before  submitted  to 
voters;  veto  may  be 
overridden  by  two- 
thirds  of  charter  com- 
mission. 

Governor  must  approve 
if  not  in  conflict 
with  State  Constitu- 
tion and  laws. 

i 

Majority  voting  thereon 
at  a  special  election. 

Council  itself  or  a  ma- 
jority voting    thereon 
at  a  general  or  special 
election. 

Majority  voting  thereon 
at   general    or   special 
election. 

Majority  voting  thereon 
at  a  general  or  special 
election. 

Majority  voting  thereon 
at   general   or    special 
election  compulsory. 

W  H 
^1 

On  petition  of  5  per  cent 
of  voters  council  must 
submit     proposal    for 
charter  convention. 

New  charter  may  be 
submitted  by  council 
or  by  petition  of  not 
over  15  per  cent  of 
voters. 

By  ordinance  of  council 
calling  election  of  free- 
holders, compulsory 
upon  petition  of  25 
per  cent  of  voters. 

Council  may  by  two- 
thirds  vote  submit 
proposal  for  charter 
commission;  compul- 
sory upon  petition  of 
25  per  cent  of  voters. 

By  ordinance  of  council 
calling  election  of  free- 
holders: compulsory 
upon  petition  of  25 
per  cent  of  voters. 

H 

Colorado  (1902). 
Oregon  2  (1906). 
Oklahoma  (1907). 
Michigan  3  (1908). 

Arizona  (1912). 

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BIBLIOGRAPHY. 

Special  References. 

McBain,  H.  L.  The  Law  and  Practice  of  Municipal  Home  Rule.  New 
York,  1916.    This  is  the  most  complete  treatise  on  the  subject. 

Citizens'  Union  of  New  York  City.  An  Analysis  and  Criticism  of  the 
Home  Rule  Amendments.  Submitted  to  the  New  York  Constitu- 
tional Convention,  1915.    New  York,  1915. 

A  Brief  for  Municipal  Home  Rule  and  Digest  of  Proposals.     New 

York,  1915. 

Goodnow,  Frank  Johnson.    Municipal  Home  Rule.    New  York,  1906. 

Eaton,  A.  M.  "The  Right  of  Self-Go vernment."  Harvard  Law  Review, 
XIII,  441,  570,  638;  XIV,  20,  116. 

Hatton,  A.  R.    Digest  of  City  Charters.    Chicago,  1906. 

New  York  Constitutional  Convention  Commission.  Revision  of  the  State 
Constitution,  Papers  on  Special  Topics.  Part  II.  "Home  Rule  for 
Cities,"  by  H.  L.  McBain,  pp.  1-38;  "A  Proposal  for  a  Revision  of 
the  Municipal  Article,"  by  L.  A.  Tanzer,  pp.  37-56;  "Local  Govern- 
ment and  the  State  Constitution,"  by  M.  H.  Glynn,  pp.  57-60;  "The 
City  and  the  State  Constitution,"  by  J.  P.  Mitchel,  pp.  61-67. 

Schaffner,  Margaret  A.  Municipal  Home  Rule  Charters.  Comparative 
Legislation  Bulletin,  No.  18,  of  the  Wisconsin  Library  Commission. 
Madison,  1908. 

General  References. 

Beard,  C.  A.    American  City  Government.    New  York,  1912.    pp.  31-51. 

Doming,  H.  E.  Government  of  American  Cities.  New  York,  1909. 
pp.  79-97. 

Flack,  H.  E.  "Municipal  Government  in  the  United  States,  Historical 
Development  of,"  in  Cyclopaedia  of  American  Government,  II,  479-482. 

Goodnow,  F.  J.    Municipal  Govenimenb.    New  York,  1909.    Chap.  IV. 

Munro,  W.  B.  Government  of  Americaa  Cities.  New  York,  1912.  pp. 
54-70.  Also  "Legislation  and  Legislative  Problems  in  Cities,"  in  Cyclo- 
paedia of  American  Government,  II,  325-329. 

Wilcox,  D.  F.  The  American  City;  A  Problem  in  Democracy.  New 
York,  1911.  pp.  313-340.  Also  "Municipal  Government,  Functions 
of,"  in  Cyclopaedia  of  American  Government,  II,  475-477. 

Woodruff,  C.  R.  "Municipal  Government  in  the  United  States,  Organi- 
zation of,"  in  Cyclopaedia  of  American  Government,  II,  483-486. 


BULLETIN  No.   12 


COMMISSION    GOVERNMENT    IN 
AMERICAN    CITIES 


CONTENTS. 


PAGE 

I.   Origin  of  Commission  Government, 455 

The  Galveston  Plan, 455 

The  Des  Moines  Plan, 456 

Spread  of  Commission  Government, 457 

II.    Methods  of  Adoption, 458 

General  Laws, 459 

Optional  Charter  Laws, 460 

Home  Rule  Charters, 460 

Adoption  by  Special  Legislative  Charter,         ....  460 

III.   Summary  of  Provisions  of  Commission  Government  Laws  and 

Charters, 461 

The  Commission, 461 

Administrative  Departments, 463 

Mayor, 463 

Appointments, 465 

Other  Departments, 465 

Initiative,  Referendum  and  Recall, 466 

rV.  Commission  Government  in  Massachusetts,        ....  467 

Haverhill,  Gloucester  and  Lowell, 468 

LjTin  and  Lawrence, 469 

Commission  Government  under  the  Optional  Charter  Act,  .  469 

V.    Conclusion, 471 

Appendix  A.  —  Digest  of  Iowa  Commission  Government  Laws,     .  475 

Appendix  B.  —  Digest  of  Charter  of  Lowell, 477 

Appendix  C.  —  Digest  of  Charter  of  Buffalo, 479 

Appendix  D.  — •  References  to  General  Commission  Government 

Acts, 481 

Appendix  E.  — •  List  of  Commission  Government  Cities,   .       .       .  483 

BibUography, 487 


COMMISSION  GOVERNMENT  IN  AMERICAN 

CITIES. 


I.    Origin  of  Commission  Government. 

The  form  of  city  government  which  first  developed  in  this 
country  and  which  still  prevails  as  the  most  common  type  is  the 
so-called  mayor  and  council  plan  according  to  which  the  cor- 
porate powers  of  the  municipality  are  di\dded  among  a  mayor, 
a  council  usually  elected  from  wards,  and  a  number  of  inde- 
pendent administrative  officials  chosen  either  by  popular  vote 
or  by  the  city  council.  This  was  practically  the  only  system  of 
municipal  government  to  be  found  in  the  United  States  prior  to 
the  beginning  of  the  twentieth  century  when  Galveston,  Texas, 
experimented  with  a  new  scheme. 

The  Galveston  Plan. 

Following  a  disastrous  tidal  wave  which  almost  destroyed  the 
city,  the  people  of  Galveston  in  1901  petitioned  the  Legislature 
that  the  administration  of  municipal  affairs  be  given  to  a  small 
board  of  business  men.  The  Legislature  complied  with  this  re- 
quest and  created  a  commission  of  five  members,  three  to  be 
appointed  by  the  Governor  and  two  to  be  elected  by  the  voters 
of  the  city.^  A  year  or  two  later  the  appointment  of  city 
oflBcers  by  State  authorities  was  held  unconstitutional,  with  the 
result  that  the  Legislature  amended  the  act  in  1903  so  that  all 
the  members  of  the  Galveston  commission  should  be  chosen  by 
popular  vote.^ 

Although  it  was  adopted  merely  to  tide  over  a  temporary 
emergency  the  new  plan  attracted  the  attention  of  other  com- 
munities, with  the  result  that  in  1905  Houston,  Texas,  adopted 
a  similar  charter.^ 

"  Special  Laws  of  Texas,  1901,  Chap.  12. 

'  Special  Laws  of  Texas,  1903,  Chap.  37,  amending  the  charter  of  Galveston,  April  18,  1901. 

>  Special  Laws  of  Texas,  1905,  Chap.  17,  pp.  131-171. 


456 


The  Des  Moines  Plan. 

Prior  to  1907  commission  government  had  not  spread  beyond 
the  two  Texas  cities  of  Galveston  and  Houston,  but  in  that 
year  the  Iowa  Legislature  passed  an  act  permitting  any  city  in 
the  State  having  a  population  of  more  than  25,000  to  adopt  the 
commission  type  of  government.  Des  Moines  was  the  first  city 
to  take  advantage  of  this  act,  and  was  also  the  first  city  outside 
of  Texas  to  accept  the  new  plan.^ 

The  so-called  Des  Moines  plan  of  commission  government, 
which  has  become  the  model  for  later  commission  government 
laws  and  charters,  is  very  similar  in  its  essential  provisions  to 
that  of  Galveston,  but  embodies  some  new  features.  In  brief  it 
provides  for  the  concentration  of  all  legislative  and  executive 
functions  in  a  small  board  consisting  of  a  mayor  and  four  com- 
missioners elected  at  large  for  terms  of  two  years  each.  Under 
the  Des  Moines  plan  the  business  of  the  city  is  grouped  into 
five  departments  —  public  affairs,  accounts  and  finances,  public 
safety,  streets  and  public  improvements  and  parks  and  public 
property.  The  commissioner  who  is  elected  mayor  becomes  ex- 
officio  head  of  the  department  of  public  affairs,  while  each  of  the 
other  commissioners  is  assigned  to  the  headship  of  one  of  the 
other  departments  by  a  majority  vote  of  the  council.  All 
officers  and  employees  in  the  departments  are  appointed  by  the 
council  as  a  whole.  Provision  is  also  made  for  the  appointment 
of  a  board  of  three  civil  service  commissioners  to  have  charge  of 
the  State  laws  relating  to  civil  service. 

The  Des  Moines  plan  so  far  differs  very  little  from  the 
Galveston  system.  The  new  feature  of  the  Des  Moines  scheme 
is  that  it  adds  the  initiative,  referendum  and  recall,  which 
were  not  provided  for  in  Galveston.  Under  the  initiative 
twenty-five  per  cent  of  the  qualified  voters  of  the  city  may 
present  a  petition  to  the  council  containing  a  proposed  ordi- 
nance, and  if  the  council  does  not  pass  such  ordinance,  it  must 
be  submitted  to  the  voters  for  ratification  or  disapproval. 
Under  the  referendum  provision,  no  measure  passed  by  the 
council,  except  an  emergency  measure,  can  go  into  effect  until 
ten  days  after  its  passage.     If  during  this  interim  a  petition 

'  Laws  of  Iowa,  1907,  Chap.  48;  amended  by  Laws  of  1909,  Chap.  64,  and  by  Laws  of  191S,  Chap. 
102,  BO  as  to  apply  to  all  cities  and  towns  over  2,000.   See  Appendix  A  for  a  digest  of  the  Iowa  law. 


457 

signed  by  twenty-five  per  cent  of  the  voters  is  presented  to  the 
council  protesting  against  such  ordinance  it  is  the  duty  of  the 
council  to  reconsider  the  matter.  If  the  ordinance  is  not  re- 
scinded it  must  be  presented  to  the  voters  at  a  regular  election 
if  one  is  held  within  ninety  days;  otherwise  at  a  special  election 
held  for  the  purpose.^ 

The  recall  provision  permits  the  voters  to  remove  any  member 
of  the  council  after  he  has  been  in  office  for  at  least  three 
months.  In  order  to  bring  about  an  election  for  the  recall  of  a 
commissioner  a  petition  must  be  filed,  signed  by  at  least 
twenty-five  per  cent  of  the  voters.  At  the  recall  election  a 
vote  is  taken  as  to  whether  the  commissioner  shall  be  removed 
and  also  on  the  names  of  candidates  to  succeed  him  in  case  his 
recall  is  favored  by  a  majority  of  the  electors.  A  commissioner 
whose  removal  is  sought  may  be  a  candidate  to  succeed  him- 
self, and  unless  he  otherwise  requests  his  name  is  automatically 
placed  on  the  ballot. 


Spread  of  Commission  Government. 
Following  the  adoption  of  the  revised  commission  system  in 
Des  Moines,  a  number  of  cities  all  over  the  country  abolished 
the  mayor  and  council  plan  and  adopted  the  new  system,  so 
that  to-day  there  are  about  three  hundred  and  fifty  cities  with 
commission  government  varying  in  size  from  Buffalo  and  New 
Orleans  with  populations  of  457,723  and  361,221  respectively,  to 
small  villages  of  a  thousand  or  so.  The  only  States  in  the 
Union  which  do  not  have  at  least  one  commission  government 
city  are  New  Hampshire,  Vermont,  Rhode  Island,  Delaware 
and  Indiana.  Of  the  various  cities  with  government  by  com- 
mission, only  five  — Buffalo,  New  Orleans,  St.  Paul,  Jersey  City 
and  Portland  (Oregon)  —  are  over  200,000  in  population;  ^ 
fourteen  have  from  100,000  to  200,000,^  while  the  remainder 

'  Under  both  the  initiative  and  referendum  at  least  twenty-five  per  cent  of  the  voters  must 
sign  the  petition  if  the  question  is  to  be  presented  at  a  special  election.  Only  ten  per  cent  is  re- 
quired for  submission  at  a  regular  election. 

2  Buffalo,  457,723;  New  Orleans,  361,221;  Jersey  City,  293,403;  Portland,  259,582;  St.  Paul, 
236,766. 

'  Lowell,  Mass.,  111,004;  Oakland,  Cal.,  186,902;  Birmingham,  Ala.,  164,165;  Memphis,  Tenn., 
143,231;  Spokane,  Wash.,  135,657;  Omaha,  Neb.,  133,274;  San  Antonio,  Tex.,  116,890;  NashWlle, 
Tenn.,  114,899;  Dallas,  Tex.,  113,525;  Houston,  Tex.,  104,726;  Salt  Lake  City,  Utah,  109,736; 
Tacoma,  Wash.,  103,418;  Trenton,  N.  J.,  107,228;  Reading,  Pa.,  103,361. 


458 

vary  widely  in  size.  Thus  it  is  seen  that  in  general  the  com- 
mission government  movement  has  met  with  the  greatest  favor 
in  the  smaller  cities.^ 

Although  the  plan  has  been  defeated  in  a  number  of  medium- 
sized  cities,  the  most  important  of  which  have  been  Minne- 
apolis, Minnesota,  Savannah,  Georgia,  Cambridge,  Massachu- 
setts, Bridgeport,  Connecticut,  and  Camden,  New  Jersey,  there 
are  only  a  few  places  which  have  given  up  commission  govern- 
ment after  once  adopting  it,  the  most  striking  examples  being 
Denver,  Colorado,  Salem,  Massachusetts,  and  Huntsville,  Ala- 
bama, which  have  returned  to  the  former  mayor  and  council 
system. 

II.    Methods  of  Adoption. 

Commission  government  has  been  established  in  the  various 
cities  by  four  different  methods;  namely,  by  general  commis- 
sion government  laws  enacted  by  the  Legislature,  by  special 
legislative  charters,  optional  charter  laws,  and  home-rule 
charters.  No  State  has  provided  expressly  for  commission 
government  in  its  constitution,  although  twelve  State  constitu- 
tions permit  cities  to  draw  up  their  own  charters,  and  under 
this  provision  they  may  establish  the  commission  plan. 

General  Laws. 
The  most  common  method  of  providing  for  commission 
government  has  been  by  general  law.  There  are  to-day  twenty 
States  which  have  enacted  permissive  commission  government 
laws,  the  provisions  of  which  may  be  adopted  by  a  city  upon 
approval  of  the  voters  of  the  community.  These  States  are 
Arkansas  (1913);  Idaho  (1911);  Illinois  (1910);  Iowa  (1907); 
Kansas  (1907);  Kentucky  (1910);  Louisiana  (1910);  Missis- 
sippi (1908);  Montana  (1911);  Nebraska  (1911);  New  Jersey 
(1911);  New  Mexico  (1909  under  Territorial  government;  1913 
under  State  government);  North  Dakota  (1907);  South  Caro- 
lina (1910);  South  Dakota  (1907);  Tennessee  (1913);  Texas 
(1909);  Washington  (1911);  Wisconsin  (1909);  and  Wyoming 
(1911).  Missouri  (1913)  also  has  a  permissive  commission 
government  law  for  cities  of  the  third  class,  but  makes  this 

*  For  list  of  all  cities  that  have  adopted  commission  government  see  Appendix  E. 


459 

form  of  government  mandatory  for  all  cities  of  the  second 
class,  which  includes  places  of  30,000  to  75,000  in  population.^ 

In  some  of  these  States,  such  as  New  Jersey,  commission 
government  as  provided  for  in  the  general  law  may  be  adopted 
by  any  city  of  the  State;  in  others,  such  as  Arkansas,  Ken- 
tucky, Louisiana,  etc.,  where  cities  are  divided  into  classes,  only 
certain  classes  of  municipalities  may  come  under  the  new  form. 
As  a  rule  the  places  to  which  general  commission  government 
acts  do  not  apply  are  the  metropolitan  centers  such  as  Chicago 
in  Illinois  and  St.  Louis  in  Missouri,  or  the  very  small  cities 
under  two  or  five  thousand  in  population. 

In  all  of  the  twenty-one  States  above-mentioned,  except 
Missouri,  commission  government  is  merely  permissive  and 
may  be  adopted  by  any  city  upon  petition  and  popular  ap- 
proval by  a  majority  of  the  voters.  In  the  four  States  of 
Alabama,  Missouri,  Pennsylvania  and  Utah,  however,  com- 
mission government  is  made  obligatory  for  a  part  or  all  of  the 
cities  in  the  Commonwealth.  In  Alabama  commission  govern- 
ment is  mandatory  for  all  cities  of  from  25,000  to  50,000  in 
population;  in  Missouri  all  cities  of  the  third  class  (30,000  to 
75,000)  have  to  operate  under  the  commission  plan;  in  Pennsyl- 
vania it  is  required  for  all  of  the  cities  of  the  State  except 
Philadelphia,  Pittsburgh  and  Scranton;  while  in  Utah  it  is 
obligatory  for  cities  of  the  first  and  second  classes.^ 

In  those  States  where  the  commission  government  law  is 
merely  permissive,  the  machinery  for  adoption  may,  as  a  general 
rule,  be  placed  in  operation  by  a  petition  signed  by  a  certain 
percentage  of  the  voters  praying  that  the  question  of  accepting 
the  act  be  submitted  at  a  general  election  if  one  is  held  within 
a  certain  time,  or  at  a  special  election  if  no  general  election 
occurs  within  the  specified  time.  The  percentage  for  placing 
the  question  of  adoption  before  the  voters  varies  from  ten 
per  cent  in  Illinois  and  North  Dakota  to  thirty-five  per  cent 
in  Oklahoma  and  forty  per  cent  in  Kansas,^  the  most  common 
requirement  being  twenty-five  per  cent.  If  a  majority  of  the 
electors  voting  on  the  proposition  are  in  favor  thereof,  the  plan 
goes  into  operation  on  the  date  specified  in  the  law. 

'  For  references  to  permissive  laws  see  Appendix  D. 
'  For  references  to  obligatory  laws  see  Appendix  D. 
'  Forty  per  cent  in  smaller  cities;  ten  per  cent  in  cities  above  15,000. 


460 


Optional  Charter  Laws. 
Somewhat  similar  to  the  general  permissive  commission 
government  acts  are  the  recent  optional  charter  laws  of  Mas- 
sachusetts, New  York,  North  Carolina,  Ohio  and  Virginia, 
under  which  a  city  may  adopt  any  one  of  several  plans  of 
government,  including  government  by  commission.'^  According 
to  the  Massachusetts  statute,  for  example,  a  city  upon  petition 
of  ten  per  cent  of  the  electors  may  vote  on  the  question  of 
adopting  Plan  C  or  commission  government,  and  if  a  majority 
voting  thereon  are  in  favor  of  the  proposition,  the  new  system 
goes  into  effect  on  the  date  specified  in  the  statute. 

Home-Rule  Charters. 
In  twelve  of  the  States,  including  Arizona,  California,  Colo- 
rado, Minnesota,  Michigan,  Missouri,  Nebraska,  Ohio,  Okla- 
homa, Oregon,  Texas  and  Washington,  the  State  constitutions 
contain  home-rule  provisions  giving  cities  the  privilege  of  draw- 
ing up  their  own  charters.  This  method  has  been  used  to  a 
fairly  large  extent  in  those  States  where  it  is  provided  for,  and 
several  important  cities,  such  as  Portland,  Oregon,  and  Spo- 
kane, Washington,  have  established  government  by  commission 
in  this  manner. 

Adoption  hy  Special  Legislative  Charter. 
The  fourth  method  of  providing  for  commission  government 
is  by  special  charters  enacted  by  the  Legislature.  This  has  been 
the  common  method  in  States  like  Florida,  Georgia,  Maine  and 
Maryland,  which  do  not  have  home-rule  provisions  and  in 
which  the  Legislatures  have  not  seen  fit  to  pass  general  com- 
mission government  laws  or  optional  charter  acts.  Some  of  the 
more  important  cities  which  have  been  given  commission 
government  by  this  method  are  Buffalo,  New  York,  Lynn, 
Lowell  and  Lawrence,  Massachusetts. 

»  General  Acts  of  Massachusetts,  1915,  Chap.  267;  Laws  of  New  York,  1914,  III.,  Chap.  444;  Laws 
of  Ohio,  1913,  pp.  767-786;  Laws  of  Virginia,  1914,  Chap.  94;  for  North  Carolina  law  see  "An  Act 
to  provide  for  the  Organization  and  Government  of  Citiea,  Towns  and  Incorporated  Villages," 
passed  by  the  North  Carolina  Legislature,  Session  of  1917. 


461 


III.    Summary  of  Provisions  of  Commission  Government 
Laws  and  Charters. 

The  Commission. 

From  the  above  description  of  commission  government  in 
Galveston  and  Des  Moines,  it  is  seen  that  the  first  essential  of 
the  system  is  the  concentration  in  the  hands  of  a  small  board 
or  commission  of  all  the  legislative  and  executive  powers  form- 
erly exercised  by  the  mayor,  council  and  other  elective  officials. 
The  size  of  the  commission  varies  from  three  members  in  the 
cities  of  Wyoming,  Wisconsin  and  New  Mexico  to  seven  in  the 
largest  cities  of  Nebraska.  In  the  charter  laws  of  some  of  the 
States,  including  Iowa,  Kansas,  Louisiana,  Montana,  Nebraska, 
New  Jersey,  South  Carolina  and  Utah,  the  size  of  the  commis- 
sion varies  with  the  population  of  the  city.  In  Nebraska,  for 
example,  the  act  provides  for  seven  members  in  cities  of  more 
than  100,000;  five  in  cities  of  from  25,000  to  100,000;  and 
three  in  places  of  less  than  25,000.  Taking  all  of  the  cities  of 
the  country  into  consideration  the  average  number  of  commis- 
sioners is  five. 

As  a  general  rule  the  commissioners  are  elected  from  the  city 
at  large  on  a  non-partisan  ballot  after  nomination  by  petition  or 
by  a  primary  election.  An  exception  to  this  rule,  however,  is 
found  in  the  city  of  Wilmington,  North  Carolina,  where  the 
commissioners  are  elected  from  wards  instead  of  from  the  city 
at  large.  In  a  few  cities,  such  as  Spokane,  Washington,  Pueblo, 
Colorado,  Portland,  Oregon,  Grand  Junction,  Colorado,  and  in 
all  of  the  New  Jersey  cities,  preferential  voting  has  been  intro- 
duced whereby  the  voter  is  permitted  to  express  his  first, 
second  and  third  choices  for  candidates.  The  advocates  of  the 
preferential  system  claim  that  it  dispenses  with  the  necessity  of 
complicated  nominating  machinery  as  a  means  of  weeding  out 
all  but  the  leading  candidates,  and  that  it  eliminates  the  elec- 
tion of  a  commissioner  by  a  mere  minority. 

The  term  of  office  of  commissioners  varies  from  one  year  in 
Gloucester,  Massachusetts,  to  six  years  in  cities  under  the  Wis- 
consin commission  government  law.  Of  seventy-seven  cities 
with  over  thirty  thousand  population,  thirty-five  provide  for 
two-year  terms;  six  for  three  years;  thirty-three  for  four  years; 


462 

one  for  five  years  and  two  for  six-year  terms,  thus  showing  that 
the  most  common  term  of  office  is  either  two  or  four  years. ^ 
Under  the  Des  Moines  or  lowa  plan  all  of  the  commissioners  are 
elected  at  one  time.  In  the  charter  laws  of  some  of  the  States, 
however,  such  as  Alabama,  North  and  South  Dakota,  and 
Montana  and  in  the  charters  of  such  cities  as  Lawrence,  Lowell, 
etc.,  provision  is  made  that  only  a  part  of  the  members  shall  be 
chosen  at  each  election,  so  as  to  make  the  commission  a  more 
continuous  body. 

In  the  larger  cities  the  commissioners  are  required  to  give  all 
of  their  time  to  their  official  duties,  while  in  the  smaller  mu- 
nicipalities they  give  only  part  time.  The  Illinois  law,  for 
example,  provides  that  — 

The  mayor  and  each  of  the  commissioners  shall  have  an  office  at  the 
municipal  building  or  rooms,  and  shall  devote  such  time  to  the  duties  of 
their  respective  offices  as  a  faithful  discharge  thereof  may  require:  Pro- 
vided, that  in  cities  of  twenty  thousand  (20,000)  population  and  over 
the  mayor  and  commissioners  shall  devote  at  least  six  hours  daily  to  the 
performance  of  their  official  duties.^ 

Since  the  commissioners  in  the  larger  cities  are  expected  to 
look  after  the  actual  administration  of  the  various  departments, 
their  salaries  are  higher  than  those  paid  to  members  of  the 
council  under  the  aldermanic  form.  Taking  into  consideration 
all  of  the  commission  government  cities  of  more  than  thirty 
thousand  people  the  highest  salaries  are  paid  in  New  Orleans, 
where  the  mayor  receives  $10,000  per  annum  and  each  of  the 
other  commissioners  $6,000;  Buffalo  where  the  mayor  receives 
$8,000  and  each  of  the  other  commissioners  $7,000,  and  Bir- 
mingham where  the  salary  of  each  of  the  members,  including  the 
mayor,  is  $7,000.  The  compensation  diminishes  in  the  other 
places,  roughly  in  proportion  to  the  size  of  the  city,  the  lowest 
salaries  being  in  Galveston,  Texas,  and  Boise,  Idaho,  which 
pay  the  mayor  $2,000  and  $1,800  respectively  and  the  other 
commissioners  $1,200.^ 

'  U.  S.  Bureau  of  the  Census,  General  Statistics  of  Cities,  1915,  Table  1,  pp.  50-56. 

2  Kurd's  Revised  Statutes  of  Illinois,  1915-16,  Chap.  24,  Art.  XIII,  p.  342. 

•  U.  S.  Bureau  of  the  Census,  General  Statistics  of  Cities,  1915,  Table  1,  pp.  50-57. 


463 


Administrative  Departments. 
The  second  fundamental  feature  of  commission  government  is 
that  the  administrative  work  of  the  city  is  divided  into  three, 
five  or  seven  departments,  as  the  case  may  be,  and  one  com- 
missioner is  assigned  to  each.  The  designations  of  the  depart- 
ments and  their  functions  vary  in  the  different  cities  but  the 
typical  arrangement  is  the  following :  — 

(1)  Department  of  Public  Affairs  (mayor,  miscellaneous 
functions). 

(2)  Department  of  Accounts  and  Finance. 

(3)  Department  of  Public  Health  and  Safety  (health,  police 
and  fire  protection). 

(4)  Department  of  Streets  and  Public  Improvements. 

(5)  Department  of  Public  Property  (municipal  water  and 
light  plants,  public  buildings,  etc.). 

There  are  two  general  methods  of  distributing  departments 
among  the  commissioners.  In  most  cities  the  Des  Moines  plan 
is  followed,  according  to  which  all  of  the  commissioners  except 
the  mayor  are  elected  without  reference  to  any  specific  depart- 
ment and  are  then  assigned  to  their  respective  places  by  a 
majority  vote  of  the  commissioners.  The  commission  also  de- 
termines by  ordinance  what  duties  or  functions  shall  be  per- 
formed by  each  of  the  departments.  Another  plan  is  followed, 
however,  in  such  cities  as  Grand  Junction,  Colorado,  Lawrence 
and  Lynn,  Massachusetts,  Houston,  Texas,  and  in  the  charter 
laws  of  Massachusetts,  Arkansas  and  Louisiana,  where  each 
commissioner  has  his  name  placed  on  the  ballot  as  a  candidate 
for  the  headship  of  a  particular  department  and  is  elected 
directly  by  the  people  to  take  charge  of  that  department.  In 
the  cities  of  South  Carolina  a  still  different  method  is  found. 
The  general  charter  act  of  that  State  provides  that  the  com- 
missioners shall  be  allotted  to  the  various  departments  by  the 
mayor,  with  the  proviso  that  rearrangements  may  be  made 
when  necessary  by  vote  of  the  council. 

Mayor . 
Under  practically  all  of  the  commission  government  laws  and 
charters  one  of  the  commissioners  is  designated  as  mayor.    In 
most  cases  the  mayor  is  elected  directly  to  this  oflfice  by  popular 


464 

vote;  in  a  few  cities,  such  as  Wilmington,  North  Carolina, 
Huntington  and  Bluefield,  West  Virginia,  the  mayor  is  that 
commissioner  who  receives  the  highest  number  of  votes;  while 
in  New  Jersey  and  Nebraska  the  laws  provide  that  the  mayor 
shall  be  chosen  by  majority  vote  of  the  commission  from  among 
its  own  membership.  In  most  commission  government  cities 
the  mayor  is  assigned  to  the  department  of  public  affairs  and  is 
given  a  number  of  miscellaneous  functions  of  a  general  nature; 
in  a  few  cities,  such  as  Buffalo,  New  York,  and  Gardiner, 
Maine,  he  is  placed  in  charge  of  the  department  of  public  safety 
or  of  the  department  of  accounts  and  finance. 

According  to  the  typical  plan  of  government  by  commission 
the  mayor  has  no  greater  powers  than  any  of  the  other  mem- 
bers, except  that  he  presides  at  meetings  of  the  commission  and 
represents  the  city  in  a  ceremonial  capacity.  As  presiding 
officer  of  the  commission  he  has  the  right  to  vote  on  all  matters, 
but  in  most  cases  he  does  not  possess  the  veto  power  as  does 
the  mayor  under  the  old  aldermanic  system.  Exceptions  are 
found,  however,  in  St.  Paul,  Minnesota,  and  in  a  few  small 
cities,  including  Dallas  and  Marshall,  Texas,  Ardmore,  Okla- 
homa, and  Chattanooga,  Tennessee,  where  the  mayor  may  veto 
any  ordinance  passed  by  the  council,  and  in  Colorado  Springs 
where  he  may  disapprove  of  items  in  appropriation  ordinances. 

The  charter  of  Houston,  Texas,  gives  the  mayor  somewhat 
greater  power  than  any  of  the  other  commission  government 
cities,  the  provision  being  that  he  shall  have  not  only  the  right 
of  veto  but  also  the  authority  to  appoint  most  of  the  important 
ofiicials  of  the  municipality.^  Under  the  South  Carolina  statute 
the  position  of  the  mayor  is  also  of  greater  importance  than 
usual,  since  he  assigns  the  various  commissioners  to  their  re- 
spective departments.^  Then  too,  in  some  of  the  recent 
charters,  such  as  those  of  Buffalo  and  of  the  Pennsylvania 
cities,  there  appears  to  be  a  tendency  to  give  the  mayor  some- 
what larger  powers  of  general  supervision  and  oversight  of  the 
affairs  of  the  city.  The  Buffalo  charter  provides  in  this  respect 
that  it  shall  be  the  duty  of  the  mayor  to  acquaint  himself  with 
the  conduct  of  each  of  the  other  departments  and  to  report 
thereon  to  the  council  with  such  recommendations  as  he  may 

1  Special  Laws  of  Texas,  1905,  Chap.  17. 

2  Laws  of  South  Carolina,  1912,  p.  800,  Sect.  14. 


465 

deem  advisable.^  According  to  the  Pennsylvania  law  the  mayor 
is  to  have  general  supervision  of  all  the  city  departments,  and 
is  required  to  keep  the  council  informed  as  to  the  needs  of  the 
city  and  as  to  its  financial  condition.^  The  above-mentioned 
cases  are  exceptions,  however,  and  in  most  instances  it  can  be 
said  that  the  mayor  has  little  more  power  than  any  of  the  other 
commissioners. 

Appointments. 
Under  the  orthodox  commission  plan  the  most  important 
subordinate  officers  of  the  city,  such  as  city  clerk,  treasurer, 
auditor,  solicitor  and  chief  of  police,  are  chosen  by  a  majority 
vote  of  the  commission,  and  each  commissioner  is  permitted  to 
appoint  only  the  minor  officials  and  employees  in  his  depart- 
ment. A  departure  from  this  rule  is  found,  however,  in  the 
optional  charter  law  of  Massachusetts,  where  the  individual 
commissioners  make  all  appointments  within  their  respective 
departments,  subject  to  ratification  by  the  council.  Civil 
service  is  provided  for  in  a  number  of  the  commission  govern- 
ment laws,  including  those  of  Arkansas,  Iowa,  Missouri  and 
Montana,  and  in  the  charters  of  the  larger  cities  such  as 
Buffalo,  St.  Paul  and  Spokane. 

Other  Departments. 

Practically  all  of  the  charters  and  laws  provide  that  the 
schools  shall  be  placed  in  charge  of  a  separate  board  or  depart- 
ment instead  of  being  controlled  by  the  commission.  Buffalo, 
New  York,  St.  Paul,  Minnesota,  Chattanooga,  Tennessee,  and 
Sacramento,  California,  however,  have  followed  a  different 
practice,  and  have  entrusted  the  administration  of  the  schools 
to  the  commission,  which  acts  in  the  capacity  of  a  school  com- 
mittee, appoints  the  superintendent,  determines  questions  of 
policy,  and  so  on. 

Under  the  orthodox  commission  government  system  all  of  the 
departments  except  the  schools  are  concentrated  in  the  hands 
of  the  commission,  and  the  only  elective  officials  are  the  mem- 
bers of  this  board  and  of  the  school  committee.  In  several 
cities,  however,  the  centralization  of  functions  is  not  so  com- 

'  For  digest  of  the  Buffalo  charter  see  Appendix  C. 

«  Laws  of  Pennsylvania,  1913,  Act  No.  367,  pp.  595-596,  Sect.  4. 


466 

plete,  and  provision  is  made  for  the  election  of  other  adminis- 
trative officials  —  especially  fiscal  officers,  such  as  the  comp- 
troller and  auditor.  Among  the  important  cities  whose  charters 
provide  for  the  popular  election  of  the  comptroller  are  St.  Paul, 
Minnesota;  Tacoma,  Washington,  and  Houston,  Texas;  also  the 
cities  under  the  Pennsylvania  commission  government  law.  In 
San  Diego,  California,  the  treasurer  is  elected  by  the  people, 
while  in  Portland,  Oregon,  the  auditor  is  chosen  in  this  way. 

Initiative,  Referendum  and  Recall. 

Another  feature  of  commission  government  laws  and  charters 
which  is  practically  universal  is  provision  for  the  initiative, 
referendum  and  recall.  Of  the  States  which  have  general  com- 
mission government  laws  all  but  Alabama,  New  Mexico  and 
Utah  provide  for  the  initiative,  and  all  but  New  Mexico,  Utah 
and  Wisconsin  for  the  referendum.  The  only  States  with 
general  charier  laws  w^hich  do  not  include  provision  for  the 
recall  are  Kentucky,  New  Mexico,  Tennessee,  Utah  and 
Pennsylvania. 

The  initiative  operates  normally  in  the  following  manner:  a 
prescribed  number  of  voters  may  present  a  petition  to  the 
council  or  commission  proposing  an  ordinance  which  they  de- 
sire to  have  enacted.  The  commission  has  the  option  then  of 
acting  upon  the  ordinance  itself  and  passing  it  in  the  form  pro- 
posed, or  it  may  submit  the  measure  to  the  voters  at  a  general 
or  special  election.  The  number  of  signatures  required  for  an 
initiative  petition  is  usually  based  on  a  certain  per  cent  of  the 
total  vote  cast  at  the  last  preceding  municipal  election,  although 
in  a  few  States,  such  as  Mississippi  and  Wyoming,  the  percent- 
age required  is  based  on  the  total  number  of  qualified  voters. 
The  signatures  necessary  for  initiating  a  measure  vary  from 
five  and  ten  per  cent  in  the  charter  laws  of  South  Dakota  and 
Mississippi  respectively  to  forty  per  cent  in  the  second-class 
cities  operating  under  the  Kansas  commission  government  law. 
The  most  common  requirement  is  either  fifteen  or  twenty-five 
per  cent. 

Under  the  referendum  all  ordinances  passed  by  the  council, 
except  emergency  measures  for  the  immediate  preservation  of 
the  public  health  or  safety,  are  suspended  from  operation  for  a 


467 

given  time,  usually  ten  days.  If,  during  this  interim,  a  petition 
is  presented  signed  by  a  prescribed  percentage  of  the  voters, 
the  commission  must  either  repeal  the  ordinance  or  submit  it  to 
the  people  for  their  approval  or  disapproval.  The  percentage 
of  voters  necessary  to  put  the  referendum  in  operation  is  very 
similar  to  that  for  the  initiative,  varying  from  five  per  cent  in 
North  Dakota  cities  to  thirty-five  per  cent  under  the  Wyoming 
charter  law. 

The  recall  is  a  method  for  the  popular  removal  of  members  of 
the  commission,  and  may  be  employed  in  the  case  of  any  com- 
missioner after  he  has  been  in  office  a  certain  length  of  time, 
generally  six  months.  The  machinery  for  the  recall  is  placed  in 
operation  by  the  filing  of  a  petition  signed  by  a  specified  number 
of  voters,  varying  from  ten  per  cent  in  the  Virginia  charter  law 
to  fifty-five  per  cent  in  Illinois.  If  the  petition  is  found  to  be 
sufiicient,  the  commission  must  then  call  an  election  in  order  to 
choose  some  one  for  the  prospective  vacancy.  In  most  cities 
the  commissioner  against  whom  charges  have  been  made  may 
be  a  candidate  to  succeed  himself,  and  if  he  does  not  receive 
the  highest  number  of  votes  at  the  recall  election  he  is  auto- 
matically removed  and  is  displaced  by  the  candidate  who  does 
receive  such  vote. 

IV.    Commission  Government  in  Massachusetts. 

Commission  government  has  been  in  existence  in  Massachu- 
setts since  1909,  when  Gloucester  and  Haverhill  commenced 
operation  under  charters  which  had  been  obtained  from  the 
Legislature  the  previous  year.  In  1910  Lynn  was  granted  a 
commission  government  charter,  while  Lawrence  and  Lowell 
were  added  to  the  list  in  1911,  and  Salem  in  1912.^  The  latter 
city  abandoned  the  plan  in  1915,  so  that  there  are  now  five 
cities  in  the  Commonwealth  operating  under  commission 
government.  Lowell  is  the  largest  of  these  cities  with  a  popu- 
lation of  111,000;  Lynn  has  98,000;  Lawrence,  95,000;  Haver- 
hill, 47,000,  and  Gloucester,  24,000. 

'  Gloucester  Charter,  Acts  and  Resolves  of  Massachusetts,  1908,  Chap.  611. 
Haverhill  Charter,  Acts  and  Resolves  of  Massachusetts,  1908,  Chap.  574. 
Lynn  Charter,  Acts  and  Resolves  of  Massachusetts,  1910,  Chap.  602  (Part  I). 
Lawrence  Charter,  Acts  and  Resolves  of  Massachusetts,  1911,  Chap.  621  (Part  II). 
Lowell  Charter,  Acts  and  Resolves  of  Massachusetts,  1911,  Chap.  645. 
Salem  Charter,  Acts  and  Resolves  of  Massachusetts,  1912,  Chap.  559  (Part  II). 


468 

In  this  connection  it  should  be  noted  that  during  1908  the 
Legislature  enacted  a  special  law  providing  for  the  appointment 
by  the  Governor  of  a  Board  of  Control  of  five  members  to 
supervise  the  affairs  of  Chelsea  following  a  serious  fire  which 
had  almost  destroyed  the  city.^  This  arrangement,  however, 
was  only  temporary  and  came  to  an  end  in  1912  with  the 
establishment  of  a  new  charter  providing  for  the  mayor  and 
council  plan.^ 

Haverhill,  Gloucester  and  Loicell. 
The  charters  of  the  three  cities  of  Haverhill,  Gloucester  and 
Lowell  are  very  similar.  Each  provides  for  a  municipal  council 
of  five  members,  including  the  mayor  and  four  aldermen, 
elected  from  the  city  at  large  on  a  non-partisan  ballot  for  terms 
of  two  years  except  in  Gloucester,  where  the  term  is  one  year. 
All  of  the  powers  of  government  except  the  administration  of 
schools  are  centralized  in  the  hands  of  this  small  board.  The 
provision  in  the  Lowell  charter,  for  example,  reads  as  follows:  — 

The  government  of  the  city  of  Lowell  and  the  general  management  and 
control  of  all  its  affairs  shall  be  vested  in  a  municipal  council  which  shall 
be  elected  and  shall  exercise  its  powers  in  the  manner  hereinafter  set  forth; 
except,  however,  that  the  general  management  and  control  of  the  public 
schools  of  the  city  and  the  property  pertaining  thereto  shall  be  vested 
in  a  school  committee.^ 

The  Lowell  charter  provides  for  five  departments:  public 
safety  (under  the  mayor),  finance,  streets  and  highways,  water- 
works and  fire  protection,  and  public  property  and  licenses.  In 
Haverhill  and  Gloucester  the  departments  are  not  created  in 
the  charter,  but  a  distribution  of  functions  similar  to  that  in 
Lowell  has  been  made  by  ordinance.  In  all  three  cities  the 
commissioners  are  assigned  to  their  respective  departments  by 
majority  vote  of  the  council.  Appointments  of  the  more  im- 
portant subordinate  officials,  such  as  city  clerk,  treasurer, 
auditor,  etc.,  are  made  by  the  council  as  a  whole,  but  under  the 
Lowell  charter  each  commissioner  may  appoint  minor  subordi- 
nates in  his  department.    As  to  salaries,  the  Gloucester  charter 

'  Acts  and  Resolves  of  Massachusetts,  1908,  Chap.  559. 

2  Acta  and  Resolves  of  Massachusetts,  1911,  Chap.  680,  Part  II. 

>  Ibid.,  Chap.  645,  Sect.  1.    For  digest  of  Lowell  charter  see  Appendix  £. 


469 

pro\'ides  that  the  mayor  shall  receive  $1,200  per  annum  and 
each  alderman,  $1,000,  but  the  council  may  change  these 
salaries  provided  that  the  maximum  for  the  mayor  shall  not 
exceed  $1,800;  under  the  Haverhill  charter  the  mayor  is 
allowed  an  annual  compensation  of  $2,500  and  each  of  the  other 
members  $1,800;  while  the  Lowell  charter  fixes  the  salary  of 
the  mayor  at  $3,000  and  that  of  each  alderman  at  $2,500. 

In  the  Gloucester  charter,  which  was  one  of  the  first  to  be 
adopted,  the  initiative  and  referendum  are  established,  but  not 
the  recall.  In  the  charters  of  Haverhill  and  Lowell,  on  the 
other  hand,  all  three  of  these  devices  for  popular  control  are 
provided. 

Lynn  and  Lawrence. 
The  Lynn  and  LawTence  charters  establish  a  sj'stem  similar 
to  that  of  Gloucester,  Haverhill  and  Lowell,  but  with  one  im- 
portant dift'erence.  Under  the  Lynn  and  Lawrence  plans  of 
commission  government,  each  commissioner  is  elected  by  the 
voters  to  the  headship  of  a  specific  department  instead  of  being 
assigned  after  election  by  a  vote  of  the  council.  The  LawTence 
charter,  for  example,  provides  for  a  department  of  finance  and 
public  affairs  (under  the  mayor),  a  department  of  public  health 
and  charities,  a  department  of  public  safety,  a  department  of 
engineering  and  a  department  of  public  property;  and  each 
candidate  for  election  has  his  name  placed  on  the  ballot  as  an 
aspirant  for  a  particular  department.^  In  Lawrence  the  mayor 
receives  $3,500  per  annum  and  each  of  the  other  members  of 
the  council  $2,500;  while  in  Lynn  the  salaries  are  $3,500  and 
$3,000  for  the  mayor  and  aldermen  respectively. 

Commission  Government  under  the  Optional  Charter  Act. 
All  of  the  above-mentioned  cities  of  Massachusetts  have 
adopted  commission  government  under  special  charters  enacted 
by  the  Legislature  and  ratified  by  the  voters  in  each  munici- 
pality. Recently,  however  (1915),  the  Legislature  has  enacted 
an  optional  charter  law  providing  for  four  plans  of  government, 
one  of  which,  designated  as  Plan  C,  is  the  commission  govern- 
ment system.^    This  form  may  be  adopted  by  any  city  upon 

'  Amendment  to  Lawrence  charter,  Acts  and  Resolves  of  Massachusetts,  1914,  Chap.  363. 
«  General  Acts  of  MassachuseUs,  1915,  Chap.  267,  Part  IV,  Plan  C. 


470 

the  approval  of  a  majority  of  the  voters,  and  provides  for  a 
council  of  five  members  elected  from  the  city  at  large  for  two- 
year  terms,  nominations  to  be  by  petition  and  all  elections  by 
non-partisan  ballot.  The  salaries  of  the  councilmen  are  fixed  by 
the  council  itself,  but  may  not  exceed  $5,000  per  annum  for  the 
mayor  and  $4,000  for  other  members  of  the  board. 

The  departments  provided  for  are:  (1)  administration 
(mayor);  (2)  finance;  (3)  health;  (4)  public  works  and  (5) 
public  property.  Each  commissioner  is  elected  directly  by  the 
people  to  the  headship  of  one  of  these  departments,  which 
differs  from  the  orthodox  commission  plan  under  which  assign- 
ment is  made  after  election.  Another  point  of  difference  from 
the  average  plan  of  government  by  commission  is  that  all  sub- 
ordinates and  employees  in  each  department  are  appointed  by 
the  commissioner  in  charge  instead  of  by  the  majority  vote  of 
the  commission,  with  the  limitation,  however,  that  appoint- 
ments to  the  heads  of  divisions  must  be  confirmed  by  the  com- 
mission. The  initiative  and  referendum  are  provided  for,  but 
iiot  the  recall.  As  yet  no  city  has  adopted  commission  govern- 
ment under  this  act. 

The  most  important  provisions  of  the  commission  plan  as 
outlined  by  the  optional  charter  law  are  as  follows:^  — 

Section  2.  The  government  of  the  city  and  the  general  management 
and  control  of  all  of  its  affairs  shaU  be  vested  in  a  city  council,  which  shall 
be  elected  and  shall  exercise  its  powers  in  the  manner  hereinafter  set 
forth;  except,  however,  that  the  general  management  and  control  of  the 
public  schools  of  the  city  and  of  the  property  pertaining  thereto  shall  be 
vested  in  the  school  committee. 

Section  3.  The  city  council  shall  consist  of  five  members,  to  wit:  — 
a  mayor,  who  shall  be  the  commissioner  of  administration;  a  commis- 
sioner of  finance;  a  commissioner  of  health;  a  commissioner  of  public 
works  and  a  commissioner  of  public  property.  Each  of  these  commis- 
sioners shall  have  charge  of  the  department  of  city  affairs  indicated  by  his 
official  title,  except  as  to  the  affairs  and  property  of  the  city  which  are 
within  the  jurisdiction  of  the  school  committee.  All  of  these  officers  shall 
be  elected  at  large  by  and  from  the  quahfied  voters  of  the  whole  city  for 
terms  of  two  years,  except  as  is  hereinafter  provided. 

In  case  of  a  difference  of  opinion  as  to  the  departments  to  be  in  charge 
of  any  one  or  more  of  the  commissioners,  the  matter  shall  be  determined 
by  vote  of  a  majority  of  the  commissioners. 

1  An  Act  to  simplify  the  revision  of  city  charters,  General  Acts  of  Massachusetts,  1915,  Chap. 
267,  Part  IV,  Plan  C. 


471 

Section  8.  The  city  council  shall  have  and  exercise  all  the  legislative 
powers  of  the  city  except  as  such  powers  are  .  .  .  reserved  to  the  school 
committee  and  qualified  voters  of  the  city;  and  the  city  council  and  its 
members  shall  severally  or  collectively,  have  and  possess,  and  shall  tlicm- 
sclves  or  through  such  officers  as  they  may  elect  or  appoint,  exercise  all 
the  other  powers,  rights  and  duties  .  .  .  possessed  .  .  .  immediately 
prior  to  the  adoption  of  this  act  by  the  mayor,  board  of  aldermen,  com- 
mon council  and  all  other  boards,  comnaissions,  and  committees  of  the 
city  .  .  .  except  such  as  are  conferred  upon  the  school  committee  or  are 
otherwise  provided  for  in  this  part. 

Section  10.  The  mayor  shall  be  the  chief  executive  officer  of  the  city, 
commissioner  of  administration  and,  ex  offi,cio,  chairman  of  the  school 
committee.  He  shall  preside  at  all  meetings  of  the  city  council  and  of  the 
school  committee  at  which  he  is  present.  He  shall  also,  when  present, 
preside  at  all  joint  conventions  of  the  city  council  and  of  the  school  com- 
mittee. 

He  shall  have  the  right  to  vote  on  all  questions  coming  before  the  citj'' 
council,  but  shall  have  no  power  of  veto. 

He  shall  have  such  other  duties,  rights  and  powers  as  maj^  be  provided 
by  ordinance,  not  in  conflict  with  this  act. 

Section  11.  All  executive  and  administrative  powers,  authorities  and 
duties,  not  otherwise  provided  for  in  this  act,  shall  be  assigned  to  a  suit- 
able department  by  the  city  council  by  ordinance,  and  changes  in  the 
assignments  made  in  this  manner  may  be  made  by  ordinance  by  the  affirm- 
ative vote  of  three  members  of  the  city  council,  or  by  the  qualified  voters 
of  the  city  upon  initiative  petition. 

The  city  council  shall  determine  the  policies  to  be  pursued  and  the  work 
to  be  undertaken  in  each  department,  but  each  commissioner  shall  have 
full  power  to  carry  out  the  policies  or  to  have  the  work  performed  in  his 
department  as  directed  by  the  city  council. 

Section  12.  Each  commissioner  may,  except  as  is  otherwise  provided 
herein,  appoint  a  qualified  person  to  serve  as  the  head  of  each  department 
under  his  charge  and  may  remove  him  at  any  time  for  cause  stated  in  the 
order  of  removal.  All  appointments  and  removals  so  made  shall  be  sub- 
ject to  confirmation  by  the  city  council.  The  employees  in  each  depart- 
ment shall  be  appointed  and  removed  by  the  head  of  that  department. 
Nothing  in  this  section  shall  in  any  way  affect  the  laws  governing  the  civil 
service. 

V.    Conclusion. 

Commission  government  has  been  in  operation  in  the  United 
States  for  a  period  of  about  fifteen  years,  and  may  be  con- 
sidered as  having  passed  the  experimental  stage.  The  principal 
advantages  urged  in  favor  of  the  plan  are:  First,  that  it  does 
away  with  the  scattering  of  powers  and  responsibilities  which  is 


472 

oftentimes  found  under  the  mayor  and  council  plan  and  con- 
centrates all  responsibility  in  a  small  board  of  popularly  elected 
representatives.  Secondly,  it  is  urged  that  the  management  of 
a  city's  affairs  is  not  so  much  a  matter  of  government  as  it  is 
of  business,  and  that  the  commission  plan  makes  possible  the 
application  of  more  business-like  methods  to  city  administra- 
tion. Thirdly,  it  is  said  that  this  form  of  government  reduces 
administrative  Iriction  and  delay  and  enables  a  city  to  conduct 
its  work  promptly.  Finally,  it  Is  claimed  that  commission 
government  tends  to  secure  a  better  type  of  municipal  officers. 

The  arguments  advanced  against  commission  government  are 
that  it  is  undemocratic,  because  it  centers  too  much  power  in  a 
small  group  of  officials;  that  it  violates  the  doctrine  of  separa- 
tion of  powers  by  placing  both  the  appropriating  and  spending 
functions  in  the  same  hands;  and  that  it  is  especially  open  to 
criticism  in  not  pro\ading  a  single  head  for  the  administration. 

As  to  the  workings  of  commission  government,  the  United 
States  Bureau  of  the  Census  in  1915  compiled  a  series  of  tables 
showing  the  comparative  financial  statistics  of  a  group  of  rep- 
resentative mayor  and  council  and  commission  government  cities 
of  over  30,000  population.^  The  eight  mayor  and  council  cities 
which  were  chosen  for  comparison  were  Indianapolis,  Indiana, 
(259,820);  Hartford,  Connecticut  (107,521);  Youngstown,  Ohio 
(100,593);  Troy,  New  York  (77,560);  Peoria,  IHinois  (70,006); 
Little  Rock,  Arkansas  (53,811);  Davenport,  Iowa  (46,537),  and 
Charlotte,  North  Carolina  (38,263),  representing  a  total  popu- 
lation in  1915  of  754,111,  or  an  average  of  94,000  each.  The 
eight  commission  governed  cities  were  Birmingham,  Alabama 
(164,165);  Lowell,  Massachusetts  (111,004);  Salt  Lake  City, 
Utah  (109,736);  Des  Moines,  Iowa  (97,304);  Pueblo,  Colo- 
rado (51,218);  Topeka,  Kansas  (47,102);  Montgomery,  Ala- 
bama (42,154),  and  Austin,  Texas  (33,218),  with  a  total  popu- 
lation of  655,901,  or  an  average  of  82,000  for  each  city. 

A  comparison  of  tax  levies  in  the  two  groups  of  cities  for 
1915  shows  that  the  average  per  capita  levy  of  property  taxes 
for  the  eight  mayor  and  council  cities  was  $16.36  as  against 
$12.31  in  the  commission  government  cities,  or  a  difference  of 

1  U.  S.  Bureau  of  the  Census,  Comparative  Financial  Statistics  of  Cities  under  Council  and 
Commission  Government,  1913  and  1915,  Washington,  1916. 


473 


$4.05  in  favor  of  the  cities  under  government  by  commission. 
The  average  per  capita  receipts  from  all  revenues  were  $23.68 
for  the  mayor  and  council  cities  and  $20.84  for  the  commission 
cities;  while  the  average  per  capita  payments  for  the  operating 
expenses  of  the  general  departments  were  $15.06  in  the  mayor 
and  council  municipalities  as  compared  with  $12.38  for  the 
places  with  the  commission  plan,  or  a  difference  of  S2.68  to  the 
advantage  of  the  cities  \Aath  the  new  form.  On  the  other  hand 
the  indebtedness  of  commission  government  cities  was  some- 
what greater  than  that  of  cities  under  the  aldermanic  form,  the 
average  per  capita  net  debt  in  the  former  group  being  $41.49  as 
contrasted  with  $36.27  for  municipalities  under  the  aldermanic 
system.  Whether  the  larger  indebtedness  in  commission 
government  cities  is  due  to  the  inheritance  of  obligations  from 
previous  administrations  or  to  the  wide  use  of  credit  by  such 
cities  is  an  open  question.  Following  is  a  summary  of  the 
table  compiled  by  the  Census  Bureau:^  — 


Average  Per  Capita  Financial  Statistics  for  1915  of  Eight  Mayor  and  Coun- 
cil Cities  as  compared  with  Eight  Commission  Governed  Cities. 


Subject. 

Cities  under 

Mayor  and 

Council  Form. 

Cities  under 

Commission 

Form. 

Per  capita  levy  of  property  taxes,    .... 
Per  capita  revenue  receipts,     ..... 
Per  capita  expenses  of  general  departments, 
Per  capita  net  indebtedness,    ..... 

$16  36 
23  68 
15  06 
36  27 

$12  31 
20  84 
12  38 
41  49 

The  statistics  published  by  the  Bureau  of  the  Census  also 
contain  a  comparison  of  the  finances  of  the  above-mentioned 
cities  in  1915  as  contrasted  with  the  year  1913.  According  to 
these  tables  only  one  of  the  mayor  and  council  cities  lowered  its 
per  capita  tax  levy  during  the  interim,  namely,  Peoria,  Illinois; 
in  none  of  the  commission  government  cities  was  there  a  de- 
crease in  this  item.  As  to  the  operating  expenses  of  the  various 
departments,  none  of  the  aldermanic  cities  showed  a  decrease; 
and  Montgomery,  Alabama,  was  the  only  one  in  the  commis- 
sion government  group   which  had   a  saving  in  this  respect. 

'  U.  S.  Bureau  of  the  Census,  Comparative  Financial  Statistics  of  Cities  under  Council  and 
Commission  Government,  Washington,  1916,  Table  1,  p.  9. 


474 


Among  the  aldermanic  cities  there  was  no  instance  of  a  decrease 
in  the  per  capita  net  debt,  whereas  five  of  the  eight  commission 
governed  cities  —  Birmingham,  Topeka,  Pueblo,  Montgomery 
and  Austin  —  had  a  smaller  per  capita  net  debt  in  1915  than  in 
1913.  Taking  all  of  the  cities  in  both  groups  into  consideration, 
the  average  per  capita  figures  for  the  tax  levy,  operating  ex- 
penses and  indebtedness  show  an  increase  between  the  years 
1913  and  1915.  The  percentage  of  increase  in  these  items  is 
slightly  less,  however,  in  the  case  of  the  commission  govern- 
ment cities  than  in  the  cities  under  the  mayor  and  council  plan, 
as  is  shown  by  the  following  table  :^  — 


Comparison  of  Average  Per  Capita  Financial  Statistics  for  the  Years  1913 

and  1915. 


Match  and  Council  Fobm. 

Commission  Form. 

1913. 

1915. 

Per  Cent 
Increase. 

1913. 

1915. 

Per  Cent 
Increase. 

Per  capita  levy  of  prop- 

erty taxes, 

S14  73 

$16  36 

11.0 

$11   11 

$12  31 

10.90 

Per  capita  revenue  re- 

ceipts, 

22  78 

23  68 

3.9 

19  53 

20  84 

6.60 

Per  capita  expenses  of 

general    departments, 

13  27 

15  06 

14.0 

11  58 

12  38 

6.80 

Per  capita  net  indebted- 

ness, 

29  04 

36  27 

24.8 

41  65 

41  49 

.38^ 

1  U.  S.  Bureau  of  the  Census,  Comparative  Financial  Statistics  of  Cities  under  Council  and 
Commission  Government,  Washington,  1916,  Table  2,  pp.  10-11. 
'  Decrease. 


475 


A  PPENDIX    A. 


Digest  of  Iowa  Commission  Go\^rxment  Laws.^ 

Laws  of  1907,  Chapter  48;  Laws  of  1909,  Chapter  64;  Laws  of  1913, 

Chapter  102. 

Commission  Organization: 
Title:  Council. 

Number:   In  cities  having  between  2,000  and  25,000  population,  three, 
including  Mayor. 
In  cities  ha\ing  over  25,000  population,  five,  including  Mayor. 
Term:  Two  years. 
Removal:  Recall. 

Salary-  Population  2,000  to  25,000,  $120  for  each  1,000  of  population; 
maximum  82,000. 
Population  25,000  to  40,000,  Sl,800. 
Population  40,000  to  60,000,  S2,500. 
Population  over  60,000,  S3,000. 
Commissioner  Departments:    In  cities  over  25,000  population:    (1) 
PubUc  Affairs;   (2)  Accounts  and  Finance;   (3)  PubUc  Safety;   (4) 
Streets  and  Public  Improvements;    (5)  Parks  and  PubUc  Prop- 
erty.   Designation  b}-  the  Council. 
General  Comaiission  Powers: 
"All  the  executive,  legislative  and  administrative  powers  formerly 
exercised  by  the  Maj^or,  City  Council,  Board  of  Public   Works, 
Park  Commissioners,  Board  of  Police  and  Fire    Commissioners, 
Board  of  Water  Works,  Trustees,  Board  of  Trustees,  Solicitor,  As- 
sessor, Treasurer,  Auditor,  City  Engineer,  and  other  executive  and 
administrative  officials  in  a  city  of  the  first  class  and  those  operat- 
ing under  special  charter." 
Special  Requirements  : 

Monthly  statements  of  receipts  and  disbursements. 
Mayor: 
Term:  Two  years. 

Salary:    Population  2,000  to  25,000,  S150  for  each  1,000  population; 
maximum  §2,500. 
Population  25,000  to  40,000,  82,500. 
Population  40,000  to  60,000,  83,000. 
Population  over  60,000,  83,500. 
Removal:  Recall. 

Powers  in  Relation  to  Conunission:   Presides  over  Council.    No  veto 
power. 

1  From  Loose  Leaf  Digest  of  Short  Ballot  Charters,  edited  by  Charles  A.  Beard  for  the  Short 
Ballot  Organization,  New  York,  1911-15. 


476 

Other  Elective  Officer: 

None. 
Appointments  : 

Enumeration:  City  Clerk,  Solicitor,  Assessor,  Treasurer,  Auditor, 
Civil  Engineer,  Cit}'-  Phj^sician,  Marshal,  Chief  of  Fire  Department, 
Market  Master,  Street  Commissioner,  three  Library  Trustees,  and 
Police  Judge  in  cities  which  have  no  Superior  Court.  In  cities  of 
less  than  25,000  population  the  IMayor  and  Council  may  dispense 
with  some  of  these  officers  at  their  discretion. 
Manner:  B3'  majority  vote  of  the  Council.    Any  officer  or  assistant  may 

be  removed  by  Council  except  as  specially  provided. 
Civil  Service  Provisions :  Council  may  establish  a  Board  of  three.  Ap- 
pointed by  the  Council  for  a  term  of  six  j'ears.  Partial  renewal. 
The  Civil  Service  pro\isions  of  the  act  apply  to  all  appointive  offi- 
cials and  employees  of  the  city  except  the  general  officials  acting 
under  the  immediate  supervision  of  the  Commissioner  in  charge, 
election  officials,  and  the  Mayor's  secretary  and  Assistant  Solicitor. 
Election  Provisions  : 

Non-partisan  primaries;  names  placed  on  ballot  by  petition  of  twenty- 
five  signatures. 
Initiative  : 

Twenty-five  per  cent  petition  (special  election). 
Ten  per  cent  petition  (general  election). 
Referendum: 
Twenty-five  per  cent  petition  (special  election). 
Ten  per  cent  petition  (general  election). 
Recall: 

Twenty-five  per  cent  petition  (general  or  special  election). 
Abandonment  of  Act: 

Operation  under  the  Act  may  be  discontinued  after  six  years  by  a 
majority  vote  of  the  electors  at  a  special  election,  based  upon  a 
twenty-five  per  cent  petition. 


477 


Appendix    B  . 


Digest  of  Charter  of  Lowell.  ^ 
Massachusetts  Acts  and  Rksolves,  1911,  Chapter  645. 

Commission  Organization: 
Title:  Municipal  Council. 
Number:  Five,  including  Mayor. 

Term:  Two  years.    Partial  renewal  of  the  Council  each  3^ear. 
Removal:  Recall. 

Salary:  Twenty-five  hundred  dollars. 
Commissioner  Departments: 
PubUc  Safety  (Mayor),  including  sub-departments  of  police,  health, 

poor  and  legal  claims. 
Finance,  including  sub-departments  of  treasury,  auditing,  purchasing, 
assessing,  sinking  funds,  tax  collection,  registration  of  voters  and 
city  clerk. 
Streets  and  Highways,  including  sub-departments  of  highwaj^s,  street 

lighting,  street  watering,  sewers  and  drains,  and  engineering. 
Water  Works,  including  all  offices  connected  with  water  supply  and 

fire  protection. 
Public  Property  and  Licenses,  including  sub-departments  of  buildings, 
parks,  public  grounds,  cemeteries,  electricit}',  weights  and  measures 
and  hcense  commission.    Designation  to  departments  is  made  by 
the  Municipal  Council. 
"The  Municipal  Council  shall  determine  the  policies  to  be  pursued 
and  the  work  to  be  undertaken  in  each  department  but  each  Com- 
missioner shall  have  full  power  to  carrj^  out  the  policies  or  to  have 
the  work  performed  in  his  department,  as  directed  by  the  Municipal 
Council." 
General  Commission  Powers: 
The  powers  previously  exercised  by  the  Mayor,  Aldermen,  Common 
Councilmen,  members  of  the  Board  of  Charities,  Board  of  Trustees 
of  PubUc  Cemeteries  and  Water  Board  and  Board  of  PoUce. 
Special  Requirements: 

Monthly  financial  statements.  No  order,  resolution,  contract,  etc., 
involving  a  Hability  of  more  than  SoOO  may  be  passed  without  pre- 
vious pubUcation,  except  emergency  measures  passed  by  a  four- 
fifths  vote. 
The  Commissioner  of  Finance  is  required  to  have  a  complete  examina- 
tion of  the  city's  books  made  annuallj\ 

'  From  Loose  Leaf  Digest  of  Short  Ballot  Charters,  edited  by  Charles  A.   Beard  for  the  Short 
Ballot  Organization,  New  York,  1911-15. 


478 

Mayor: 
Term:  Two  years. 
Salary:  Three  thousand  dollars. 
Removal:  Recall. 

Powers:  No  veto  power;  presides  at  meetings  of  the  Municipal  Council. 
Appointments  : 
Enumeration:  City  Clerk,  Treasurer^  Collector  of  Taxes,  City  Auditor, 
Purchasing  Agent,  Superintendent  of  Streets,  Superintendent  of 
Waterworks,  City  Engineer,  City  Physician,  Board  of  Health  (3), 
Board  of  Park  Commissioners  (5),  City  SoHcitor,  Chief  of  the  Fire 
Department,   Superintendent  of  Police,   Sealer  of  Weights  and 
Measures,  Board  of  Sinking  Fund  Commissioners  (3),  Board  of 
Assessors  (3).,  License  Commissioners  (chosen  for  a  period  of  six 
years) . 
Manner:  Enumerated  officials  by  vote  of  the  Municipal  Council;  sub- 
ordinates by  the  Commissioner  in  charge  for  an  indefinite  term. 
Civil  Service  Provisions: 

Civil  Service  Provisions:  The  Civil  Service  Law  of  the  State  applies. 
Election  Provisions: 

Non-partisan  nominations ;  names  placed  on  ballot  at  preliminary  elec- 
tion on  petition  of  twenty-five  voters.    The  two  persons  receiving 
the  highest  number  of  votes  at  the  preUminary  election  are  the 
candidates  at  the  annual  (or  special)  election. 
Initiative  : 
Twenty  per  cent  petition  (special  election; . 
Ten  per  cent  (general  election). 
Referendum  : 

Fifteen  per  cent  petition. 
Recall: 
Twenty  per  cent  petition. 


479 


Appendi X    C 


Digest  of  Charter  of  Buffalo.^ 

New  York  Laws,  1914,  Chapter  217. 

Commission  Organization: 

Title:  The  Council. 

Number:  Five,  including  Mayor. 

Term :  Four  years. 

Removal:  By  the  Governor. 

Salary:  Seven  thousand  dollars. 

Commissioner  Departments:    (1)  Public  Safety  (Mayor),  (2)  Finance 
and  Accounts,  (3)  PubUc  Affairs,  (4)  Public  Works,  (5)  Parks  and 
PubUc  Buildings. 
Mayor  : 

Term:  Four  years. 

Removal:  B}^  the  Governor. 

Salary:  Eight  thousand  dollars. 

Powers  and  Duties:   It  is  the  duty  of  the  Mayor  to  acquaint  himself 
with  the  conduct  of  each  of  the  other  city  departments  and  to 
report  thereon  to  the  council  with  such  recommendations  as  he 
may  deem  advisable. 
Appointments  : 

Enumeration:  (1)  Corporation  Counsel,  Superintendent  of  Education, 
Assessor  (or  Assessors),  Street  Commissioner,  Building  Commis- 
sioner, Health  Commissioner,  Chief  of  Fire  Department,  Chief  of 
Police,  Superintendent  of  Markets,  Superintendent  of  the  Poor, 
Board  of  Education,  City  Engineer,  City  Treasurer  and  City  Au- 
ditor, (2)  The  Civil  Service  Commission. 

Manner:  Enumerated  officers  in  group  (1)  by  the  Covmcil,  subject  to 
removal  by  them  at  any  time;  deputies  and  subordinates  by  the 
Council,  on  the  nomination  of  the  councilman  in  charge  of  the  de- 
partment. 

Civil  Service  Provisions:   The  Civil  Service  Commission  is  appointed 
by  the  Council  for  a  term  of  four  years  and  its  members  are  re- 
movable upon  charges  and  after  a  hearings. 
Election  Provisions: 

Non-partisan  primaries  and  elections.  Names  placed  on  primary  bal- 
lot on  petition  of  three  hundred  (300)  electors.  Candidates  equal 
to  twice  the  number  of  vacancies  to  be  filled,  for  Commissioner 
and  Mayor  respectively  are  the  candidates  at  the  regular  election. 

>  From  Loose  Leaf  Digest  of  Short  Ballot  Charters,  edited  by  Charles  A.  Beard  for  the  Short 
Ballot  Organization,  New  York,  1911-15. 


480 

Initiative: 

No  provisions. 
Referendum: 

Five  per  cent  petition  (special  election,  unless  a  general  election  is  to 
be  held  within  ninety  days).    Not  more  than  one  special  election 
shall  be  held  within  a  period  of  six  months. 
Recall: 
No  provisions. 


481 


Appendix    D 


I.    References  to  General  Commission  Government  Acts. 
A.  —  Permissive  Acts. 


State. 


References  to  Charter  Law. 


Number  of 
Commis- 


Arkansas, 
Idaho,    . 
Illinois,  . 

Iowa, 


Kansas, 

Kentucky, 

Louisiana, 
Mississippi, 

Missouri, 
Montana, 
Nebraska, 
New  Jersey,    . 

New  Mexico,  . 

North  Dakota, 

South  Carolina, 

South  Dakota, 

Tennessee, 
Texas,    . 

Washington, 

Wisconsin, 

Wyoming, 


Laws  of  1913,  Act  No.  13,  48-88,      . 

Laws  of  1911,  Ch.  82 

Kurd's  Revised  Statutes  of  111.,  1915-lG,  Ch.  24, 

Art.  XIII,  330-356 

Laws  of  1907,  Ch.  48,  for  cities  over  25,000, 
Laws  of  1909,  Ch.  64,  extending  commission  gov- 
ernment to  cities  over  7,000, 
Laws  of  1913,  Ch.   102,  extending  commission 

government  to  cities  over  2,000,    . 
Laws  of  1911,  Ch.  52,  53,  54,   . 
Laws  of  1907,  Ch.  114,  for  cities  of  first  class, 
Laws  of  1909,  Ch.  82,  for  cities  of  second  class. 
Laws  of  1913,  Ch.  128,  for  cities  of  third  class. 
Laws  of  1910,  Ch.  50,  for  cities  of  second  class, 
Laws  of  1914,  Ch.  92,  for  cities  of  third  class, 
Laws  of  1914,  Ch.  77,  for  cities  of  fourth  class. 
Laws  of  1910,  Act  No.  302,  512-520, 
Laws  of  1912,  Act  No.  207,  425-435, 
Laws  of  1908,  Ch.  108,    .... 

Laws  of  1912,  Ch.  120 

Laws  of  1914,  Ch.  158  (provision  for  initiative, 

referendum  and  recall). 
Laws  of  1913,  517-533,  for  cities  of  third  class, 
1915,  Supplement  to  Revised  Codes,  1118-1134, 
Laws  of  1911,  Ch.  24,      .... 

Laws  of  1911,  Ch.  221 

Laws  of  1912,  Ch.  48 

New  Mexico  Statutes  annotated,   1915,  Sects. 

3781-3795 

CompUed  Laws  of  North  Dakota,  1913,  Vol.  I, 

Ch.  45,  Sects.  3771-3834,  and  Ch.  46,  Sects. 

3835-3839 

Laws  of  1910,  523-538 

Laws  of  1912,  793,  .... 

Compiled  laws  of  South  Dakota,  1913,  Vol.  I. 

322-352  aj 

Public  Acts  of  1913,  Ch.  49,     . 

General  Laws  of  1909,  Ch.  106, 

General  Laws  of  1913,  Ch.  21, 

Remington's  Codes  and  Statutes,  1915,  Vol.  II, 

Ch.  XI-A,  2889-2901. 
Wisconsin  Statutes  (Comp.),   1915,  Ch.  40-41, 

Sects.  925M-301  to  925M-319,      . 

Laws  of  1911,  Ch.  84 

Laws  of  1913,  Ch.  113,    . 


5* 
5 


5 

3 

3 

5 

3 

5 

3 

or 

5 

3 

or 

5* 

3 

or 
3 

5 

3 

or 

5 

3 

or 

5 

3. 

5  or  7 

3 

or 

5 

3 

or 

5 

3  or  5 
3  or  5 

3 

3 


•  An  asterisk  (•)  after  "  Number  of  Commissioners"  indicates  that  they  are  elected  to  specific 
departments.    In  all  other  cases  commissioners  are  assigned  to  departments  after  election. 


B. 


482 


Obligatory  Acts. 


Number  of 

State. 

References  to  Charter  Law. 

Commis- 
sioners. 1 

Alabama, 

General  Acts,  1911,  289-315 

5 

General  Acts,  1915,  789-807 

5 

Missouri, 

Laws  of  1913,  420-516,  applies  to  all  cities  of 

second  class  (30,000-75,000), 

5* 

Pennsylvania, 

Laws  of  1913,  Act  No.  367,  568,  applies  to  all 
cities    except   Philadelphia,    Pittsburgh    and 

Scranton,    ....... 

5 

Utah,      . 

Laws  of  1911,  Ch.  125,  applies  to  all  cities  of  first 

and  second  class,           ..... 

3  or  5 

II.    Optional  Charter  Laws.    One  of  Plans  provides  for  Commis- 
sion Government. 


Massachusetts, 

Acts  and  Resolves  of  Massachusetts,  1915, 

Ch. 

267 

5* 

New  York, 

Laws  of  New  York,  1914,  Vol.  Ill,  Ch.  444 

3  or  5 

North  Carolina, 

An  Act  approved  March  5,  1917, 

3 

Ohio,      . 

Laws  of  Ohio,  1913,  767-786,   . 

3  or  5 

Virginia, 

Laws  of  Virginia,  1914,  Ch.  94, 

3  or  5 

'  An  asterisk  (*)  after  "  Number  of  Commissioners"  indicates  that  they  are  elected  to  specific 
departments.     In  all  other  cases  commissioners  are  assigned  to  departments  after  election. 


III.     States  with  Home  Rule.     Cities  may  draw  up  their  Own 
Charters  providing  for  Commission  Government. 


Arizona. 
California. 
Colorado. 
Minnesota. 


Michigan. 
Missouri. 
Nebraska. 
Ohio. 


Oklahoma. 
Oregon. 
Texas. 
Washington. 


IV.     States  in  which  Commission  Government  has  been  provided 
for  only  by  Special  Legislative  Charters. 


Florida. 
Georgia. 
Maine. 


Maryland. 
West  Virginia. 


V.    States  which  have  no  Commission  Government  Cities 


Delaware. 

Indiana. 

New  Hampshire. 


Rhode  Island. 
Vermont. 


483 


Appendix    E. 


List  of  Commission  Government  Cities,^ 
I.     Cities  over  200,000,  Five  in  Number. 


City. 

Popula- 
tion. 

Date 
Opera- 
tive. 

City. 

Popula- 
tion. 

Date 
Opera- 
tive. 

Buffalo.  N.  Y.,      . 
New  Orleans,  La., 
St.  Paul,  Minn.,   . 

457,723 
361,221 
236,766 

1916 
1912 
1914 

Jersey  City,  N.  J., 
Portland,  Ore.,      . 

293,403 
259,582 

1913 
1913 

II.     Cities  of  from  100,000  to  200,000,  Fourteen  in  Number. 

Lowell,  Mass., 

111,004 

1912 

Nashville,  Tenn., 

114,899 

1913 

Oakland,  Cal.,       . 

186,902 

1911 

Dallas,  Tex., 

113,525 

1907 

Birmingham,  Ala., 

164,165 

1911 

Houston,  Tex., 

104,726 

1905 

Memphis,  Tenn., 

143,231 

1910 

Salt  Lake  City,  Utah, 

109,736 

1912 

Spokane,  Wash.,  . 

135,657 

1911 

Tacoma,  Wash.,    . 

103,418 

1910 

Omaha,  Neb., 

133,274 

1912 

Trenton,  N.  J.,      . 

107,228 

1911 

San  Antonio,  Tex., 

116,890 

1915 

Reading,  Pa., 

103,361 

1913 

III.     Cities  of  from  30,000  to  100,000,  Sixty-two  in  Number. 


Alabama. 

Illinois. 

Mobile 

55,332 

1911 

Decatur, 

37,859 

1911 

Montgomery, 

42,154 

1911 

Joliet,     .... 

36,934 

1915 

Rockford, 

52,337 

- 

California. 

Springfield,    . 

58,221 

1911 

Berkeley, 

53,492 

1909 

Pasadena, 

42,369 

1913 

Sacramento,  . 

62,717 

1912 

Iowa. 

San  Diego,  ^  . 

48,900 

1909 

Cedar  Rapids, 

36,039 

1908 

Des  Moines, 

97,304 

1908 

Colorado. 

Sioux  City,    . 

54,470 

1910 

Colorado  Springs, 

31,717 

1909 

Pueblo 

51,218 

1911 

Kansas. 

Idaho. 

Kansas  City, 

94,271 

1910 

Boise,     .... 

30,338 

1912 

Topeka, 

47,102 

1910 

'  Statistics  for  cities  of  more  than  30,000  are  taken  from  General  Statistics  of  Cities,  191B,  U.  S. 
Bureau  of  the  Census. 

2  San  Diego  has  recently  provided  for  a  "manager  of  operation,"  embodying  some  features 
of  the  city-manager  plan. 


484 


III.    Cities  of  from  80,000  to  100,000,  Sixty-two  in  Number  —  Con. 


ClTT. 

Popula- 
tion. 

Date 
Opera- 
tive. 

City. 

Popula- 
tion. 

Date 
Opera- 
tive. 

Kentucky. 

Oklahoma. 

Covington,     . 

55,896 

1914 

Muskogee,     . 

39,786 

1911 

Lexington,     . 

38,819 

1912 

Oklahoma  City,    . 

85.858 

1911 

Newport, 

31,517 

1912 

Pennsylvania. 

Louisiana. 
Shreveport,   . 

32,906 

1910 

Allentown,     . 

Altoona, 

Chester, 

60,297 
56,553 
40,474 

1913 

19131 

1913 

Erie,       .... 

72,401 

1913 

Massachusetts. 

Harrisburg,    . 

69,493 

1913 

Haverhill, 

47,071 

1909 

Johnstown,    . 

64,642 

1913 

Lawrence, 

95,834 

1912 

McKeesport, 

45,965 

1913 

Lynn,     .... 

98,207 

1911 

New  Castle,  . 

39,569 

1913 

Wilkes-Barre, 

73,660 

1913 

Michigan. 
Saginaw, 

54,401 

1914 

Williamsport, 

York 

South  Carolina. 

33,181 
49,430 

1913 
1913 

Minnesota. 

Columbia, 

33,506 

1910 

Duluth, 

89,331 

1913 

Tennessee. 

Missouri. 
Joplin,    .... 

Chattanooga, 

56,702 

1911 

32,940 

1914 

Knoxville, 

37,955 

1912 

Springfield,    . 

39,099 

1916 

Texas. 

Austin,  .... 

33,218 

1909 

Montana. 

El  Paso, 

50,113 

1907 

Butte 

42,497 

- 

Fort  Worth, 

94,494 

1907 

Galveston,     . 

40,420 

1901 

Nebraska. 

Waco,     .... 

32,285 

1909 

Lincoln, 

45,515 

1913 

WashiTigton. 

Everett, 

32,048 

1912 

New  Jersey. 

Atlantic  City, 

53,952 

1912 

West  Virginia. 

Bayonne, 

66,041 

1915 

Huntington, 

42,543 

1909 

Hoboken, 

75,364 

1915 

Orange, 

31,968 

1914 

Wisconsin. 

Passaic, 

67,643 

1911 

Oshkosh, 

34,976 

1912 

West  Hoboken,     . 

40,647 

~ 

Superior, 

44,109 

1912 

•  Under  city-manager  plan  since  January  1,  1918. 


485 


IV.    Cities  of  Less  than  30,000,  Two  Hundred  and  Sixty -eight  in  Number? 


Alabama. 
Cordova. 
Florence. 
Hartselle. 
Sheffield. 
Talladega. 
Tuscaloosa. 

Arkansas. 
Fort  Smith. 

California. 
Modesto. 
Monterey. 
Napa. 
Riverside. 
San  Luis  Obispo. 
San  Mateo. 
Santa  Cruz. 
Santa  Monica. 
Stockton. 
ValJejo. 

Colorado. 
Colorado  City. 
Durango. 
Fort  CoUins. 
Grand  Junction. 

Florida. 
Orlando. 
Pensacola. 
St.  Petersburg. 

Georgia. 
Carters  ville. 

Idaho. 
Lewiston. 

Illinois. 
Bloomington. 
Cairo. 

Carbondale. 
Clinton. 
Coal  City. 
Decatxu". 
Dixon. 
Effingham. 
Elgin. 
Flora. 

Forest  Park. 
Hamilton. 
Harrisburg. 
Harvey. 
Highland  Park. 
Hillsboro. 


Jacksonville. 

Kewanee. 

Lincoln. 

Marseilles. 

Murphysboro. 

Moline. 

Ottawa. 

Pekin. 

Rochelle. 

Rock  Island. 

Spring  Valley. 

Sterling. 

Waukegan. 

Iowa. 
Burlington. 
Fort  Dodge. 
Keokuk. 
Marshalltown. 
Mason  City. 
Ottumwa. 

Kansas. 
Anthony. 
Arkansas  City. 
Caldwell. 
Chanute. 
Cherryvale. 
Cofifeyville. 
Council  Grove. 
Dodge  City. 
Emporia. 
Eiu"eka. 
Fort  Scott. 
Garden  City. 
Garnett. 
Girard. 
Great  Bend. 
Hiawatha. 
Holton. 
Hutchinson. 
Independence, 
lola. 

Junction  City. 
Kingman. 
Lawrence. 
Leavenworth. 
Manhattan. 
Marion. 
McPherson. 
Neodesha. 
Newton. 
Olathe. 
Osawatomie. 
Ottawa. 
Parsons. 


Pittsburgh. 

Pratt. 

Wellington. 

Kentucky. 
Harrodsburg. 
Hopkinsville. 
Middlesboro. 
Paducah. 

Louisiana. 
Alexandria. 
Baton  Rouge. 
Donaldsville. 
Lafayette. 
Natchitoches. 
Hammond. 
Jennings. 
Lake  Charles. 
New  Iberia. 

Maine. 
Gardiner. 

Maryland. 
Cumberland. 

Massachusetts. 
Gloucester. 

Michigan. 
Adrian. 
Battle  Creek. 
Fremont. 
Grand  Haven. 
Harbor  Beach. 
Marquette. 
Monroe. 
Owosso. 
Pontiac. 
Port  Huron. 
Traverse  City. 
Wyandotte. 

Minnesota. 
Eveleth. 
Faribault. 
Mankato. 

Mississippi. 
Clarksdale. 
Greenwood. 
Gulfport. 
Hattiesburg. 


'  Information  regarding  cities  under  30,000  obtained  from  National  Municipal  Review,  American 
Year  Book,  Digest  of  Short  Ballot  Charters,  edited  by  Charles  A.  Beard  for  the  Short  Ballot  Organ- 
ization, E.  S.  Bradford's  Commission  Government  in  American  Cities  (New  York,  1911),  and  other 
ources. 


486 


IV.    Cities  of  Less  than  80,000,  Two  Hundred  and  Seventy  in  Number 

—  Con. 


Mississippi  —  Con. 

Ohio. 

Vermillion. 

Jackson. 

Middletown. 

Watertown. 

Laurel. 

Yankton. 

Meridian. 

Oklahoma. 

Vicksburg. 

Ada. 

Tennessee. 

Ardmore. 

Bristol. 

Missouri. 

Bartlesville. 

La  Follette. 

Aurora. 

Duncan. 

Lebanon. 

Kirks  ville. 

El  Reno. 

Memphis. 

Monette. 

Enid. 

Murfreesboro. 

West  Plains. 

Guthrie. 
Holdenville. 

Springfield. 

Montana. 

Lawton. 

Texas. 

Helena. 

McAlester. 

Aransas  Pass. 

Missoula. 

Miami. 

Coleman. 

Okmulgee. 

Corpus  Christi. 

Nebraska. 

Purcell. 

Denison. 

Beatrice. 

Sapulpa. 

Greenville. 

Nebraska  City. 

Tulsa. 

Kennedy. 

New  Jersey. 

Wagoner. 

Marble  Falls. 
Marshall. 

Belleville. 

Oregon. 
Baker. 

McKinney. 

Beverly. 

Palestine. 

Bordentown. 

Port  Arthur. 

Haddonfield. 

Hawthorne. 

Irvington. 

Long  Branch. 

MillviUe. 

New  Brunswick. 

Nutley. 

Pennsylvania. 
Beaver  Falls. 
Bradford. 
Carbondale. 

Port  Lavaca. 

Utah. 
Logan. 
Murray. 

ConnellsviUe. 

Corry. 

Easton. 

Ogden. 
Provo. 

Ocean  City. 
Phillipsburg. 

Franklin. 
Hazleton. 

Washington. 
Centralia. 

Ridgefield  Park. 

Lancaster. 

Chehalis. 

Ridgewood. 

Vineland. 

Wallington. 

Lebanon. 

Hoquiam. 

Lock  Haven. 

North  Yakima. 

Meadville. 

Walla  WaUa. 

New  Mexico. 
Las  Vegas. 

Oil  City. 
Pittston. 
Pottsville. 

West  Virginia 
Bluefield. 

New  York. 

South  Bethlehem. 

Fairmont. 

Beacon. 

Grafton. 

Mechanicsville. 

South  Carolina. 

Parkersburg. 

Saratoga  Springs. 

Florence. 

North  Carolina. 
Asheville. 

Orangeburg. 
Spartanburg. 

Wisconsin. 
Antigo. 
Appleton. 

Greensboro. 

Ashland. 

High  Point. 

South  Dakota. 

Eau  Claire. 

Raleigh. 

Aberdeen. 

Fond  du  Lac. 

Wilmington. 

Canton. 

Janesville. 

Chamberlain. 

Ladysmith. 

North  Dakota. 

Dell  Rapids. 

Menominie. 

Bismarck. 

Huron. 

Portage. 

Devil's  Lake. 

Lead. 

Rice  Lake. 

Fargo. 

Madison. 

Mandan. 

Pierre. 

Wyoming. 

Minot. 

Rapid  City. 

Cheyenne. 

Williston. 

Sioux  Falls. 

Sheridan. 

487 


BIBLIOGRAPHY. 

General  References. 

"  Commission  Government  in  American  Cities."    Annals  of  the  American 

Academy  of  Political  and  Social  Science,  XXXVIII,  No.  3,  Novem- 
ber, 1911.     Philadelphia,  1911. 
"Commission  Government  and  the  City  Manager  Plan."    Annals  of  the 

American  Academy  of  Political  and  Social  Science.     Philadelphia, 

1914. 
Beard,  C.  A.,  ed.    Loose  Leaf  Digest  of  Short  Ballot  Charters.    New 

York:  The  Short  Ballot  Organization,  383   Fourth  Avenue,   1911. 

(Contains  digest  of  many  commission  charters,  general  laws  and 

an  account  of  the  actual  operation  of  the  plan  in  a  number  of 

cities.) 
Bradford,  E.  S.     Commission  Government  in  American  Cities.     New 

York,  1911. 
A  Comparison  of  the  Forms  of  Commission  Government  in  Cities. 

Philadelphia,  1910. 
MacGregor,  Ford  H.    City  Government  by  Cormnission.    Madison,  1911, 

Wisconsin  University  Extension  Division,  Bulletin  No.  423. 
Munro,  W.  B.    The  Government  of  American  Cities.    New  York,  1916. 
National  Municipal  League.     The  Commission  Plan  and  Commission 

Manager  Plan  of  Municipal  Government.    An  analytical  study  by  a 

committee  of  the  National  Municipal  League.    Philadelphia,  1914. 
Robbins,  E.  C,  comp.     Selected  Articles  on  the  Commission  Plan  of 

Municipal  Government.     2d  ed.     Minneapolis,   1910.     (Debaters' 

Handbook  Series.) 
United  States.    Library  of  Congress.    Division  of  Bibliography.    Select 

List  of  References  on  Commission  Government  for  Cities.    Washing- 
ton, 1913.     (Best  list  yet  published.) 
Woodruff,  Clinton  Rogers,  ed.    City  Government  by  Commission.    Papers 

and  addresses  before  the  National  Municipal  League.     New  York, 

1911. 

Practical  Operation  of  Commission  Plan. 
Bradford,  E.  S.    "Financial  Results  under  the  Commission  Form  of  City 

Government."      National    Municipal    Review,    I,    372-377    (July, 

1912). 
Bru^re,  Henry,    The  New  City  Government:  a  Discussion  of  Municipal 

Administration  Based  on  a  Survey  of  Ten  Commission-governed 

Cities.     New  York,  1912. 
Munro,  W.  B.     "Ten  Years  of  Commission  Government."     National 

Municipal  Review,  I,  562-568  (October,  1912). 


488 

United  States,  Bureau  of  the  Census.  Comparative  Financial  Statistics 
of  Cities  under  Council  and  Commission  Government.  Washington, 
1916. 

General  Statistics  of  Cities,  1915.    Washington,  1916.    pp.  12-14, 

50-57. 


BULLETIN   No.   13 


THE    CITY-MANAGER    PLAN    OF 
MUNICIPAL    GOVERNMENT 


CONTENTS. 


PAGE 

I.    Systems  of  Municipal  Government  in  the  United  States,         .  493 

II.    The  City-Manager  Movement, 494 

Definition, 494 

History  and  Development, 495 

Methods  of  Adoption, 495 

III.  The  Dayton  City-Manager  Plan, 497 

The  Commission, 497 

The  City  Manager, 498 

Administrative  Departments, 499 

Initiative,  Referendum  and  Recall, 499 

IV.  The  City-Manager  Plan  in  Other  Cities, 500 

In  General, 500 

The  Ashtabula  Plan, 500 

V.    The  City-Manager  Plan  in  Massachusetts,         ....  502 

The  Optional  Charter  Law, 502 

The  Norwood  Town-Manager  Plan, 502 

VI.    Conclusion, 505 

Appendix  A.  —  Digest  of  the  Charter  of  Dayton,       ....  509 

Appendix  B.  —  Plan  D  provided  for  in  the  Massachusetts  Optional 

Charter  Law, 512 

Appendix  C.  —  List  of  Cities  with  City  Managers,     .       .       .       .514 

Bibliographj', 517 


THE    CITY-MANAGER  PLAN   OF   MUNICIPAL 
GOVERNMENT. 


I.    Systems    of    Municipal    Government    in    the    United 

States. 

There  are  at  the  present  time  three  general  types  of  mu- 
nicipal government  in  the  United  States:  namely,  the  mayor 
and  council  form,  the  commission  form  and  the  city-manager 
form.  Under  the  mayor  and  council  system,  which  was  the  first 
to  develop,  the  powers  of  government  are  divided  between  a 
mayor  as  the  chief  executive,  a  council  of  one  or  two  houses 
elected  usually  by  wards,  and  a  number  ot  independent  ad- 
ministrative officials  such  as  the  city  clerk,  treasurer,  auditor, 
etc.,  who  as  a  general  rule  are  elected  by  the  people  or  by  the 
council.  In  other  words  the  mayor  and  council  plan  in  its  usual 
form  has  followed  the  customary  American  scheme  of  organiza- 
tion which  is  based  on  the  principle  of  separation  of  powers  or 
a  system  of  checks  and  balances. 

The  mayor  and  council  form  of  municipal  government  pre- 
vailed universally  in  this  country  until  1903,  when  Galveston, 
Texas,  following  a  disastrous  tidal  wave,  adopted  a  new  sj'stem 
known  as  commission  government.  Under  the  commission 
plan  as  it  has  developed  since  its  beginning  in  Galveston,  the 
autonomous  mayor,  council  and  other  independent  departments 
are  abolished  and  all  the  powers  of  government  except  the  ad- 
ministration of  the  schools  are  vested  in  a  small,  popularly- 
elected  commission  of  from  five  to  seven  members.  Each 
member  individually  has  charge  of  one  of  the  administrative  de- 
partments of  the  city,  while  collectively  they  enact  ordinances 
and  regulations  for  the  municipality.  One  of  the  commissioners 
is  usually  given  the  title  of  mayor,  but  he  has  no  greater  powers 
than  any  of  the  others,  except  that  he  presides  over  meetings  of 
the  commission,  represents  the  city  in  a  ceremonial  capacity, 
etc. 


494 

Since  its  adoption  in  Galveston  in  1903,  commission  govern- 
ment has  spread  rapidly  throughout  the  country,  until  to-day 
every  State  except  Connecticut,  Delaware,  Indiana,  New  Hamp- 
shire and  Vermont  has  one  or  more  commission  government 
cities.  There  are  in  all  about  three  hundred  and  fifty  cities 
which  are  operating  under  the  new  system. 

II.    The  City-Manager  Movement. 

Definition. 

The  most  recent  development  in  municipal  government  has 
been  the  city-manager  plan,  which  carries  the  concentration  of 
administrative  responsibility  one  step  farther  than  does  com- 
mission government,  and  provides  an  apex  for  the  local  ad- 
ministration. As  noted  above  one  of  the  essential  features  of 
commission  government  is  the  division  of  the  administrative 
work  among  the  various  members  of  the  commission.  Under 
the  city-manager  plan  the  small  commission  elected  at  large  is 
continued  for  legislative  and  supervisory  purposes,  but  instead  of 
making  each  commissioner  the  head  of  a  particular  phase  of  the 
city's  affairs,  all  administrative  details  are  turned  over  to  a 
specially  trained  administrator  appointed  by  the  commission. 
The  city-manager  plan  may  be  defined,  therefore,  as  a  form  of 
municipal  government  in  which  all  the  corporate  powers  having 
to  do  with  the  determination  of  policy  and  the  general  direction 
of  municipal  affairs  are  vested  in  a  small  group  of  elective 
ofiicials  constituting  a  council  or  commission  elected  usually  at 
large  on  a  non-partisan  ballot,  while  the  administrative  func- 
tions are  concentrated  in  a  single  executive  official  appointed  by 
the  commission  on  the  basis  of  professional  qualifications  and 
designated  as  the  city  manager.  Such  a  plan  is  very  similar  to 
the  method  of  organization  commonly  employed  in  corpora- 
tions, the  commission  corresponding  to  the  board  of  directors 
and  the  city  manager  to  the  president  or  general  manager  of  the 
corporation. 

In  addition  to  the  above  fundamental  elements,  city-manager 
charters  also  provide  for  the  initiative,  referendum  and  recall, 
while  most  of  them  also  have  provisions  for  civil  service,  for  the 
proper  management  of  the  city's  finances,  and  for  the  control  of 
public  utilities. 


495 


History  and  Development. 

Staunton,  Virginia,  in  1908,  was  the  first  city  in  the  United 
States  to  provide  for  a  city  manager.  This  was  done  merely  by 
local  ordinance  without  any  charter  revision.  The  old  mayor 
and  council  form  was  retained,  but  the  greater  part  of  the  ad- 
ministrative work  was  turned  over  to  a  special  official  known  as 
the  "general-manager."^  Five  years  later,  in  1913,  Sumter, 
South  Carolina,  commenced  operation  under  a  legislative  charter 
which  contained  most  of  the  features  of  the  citj'-manager  plan.- 
It  remained,  however,  for  Dayton,  Ohio,  following  a  serious 
flood  in  1913,  to  be  the  first  city  to  adopt  a  complete  city- 
manager  charter  containing  all  of  the  essential  features  out- 
lined above.    This  charter  went  into  effect  on  January  1,  1914. 

Since  that  date  a  number  of  other  cities  have  taken  action  on 
the  matter,  until  to-day  there  are  about  120  cities  which  have 
either  adopted  complete  city-manager  charters,  as  in  Dayton, 
or  have  provided  for  a  city  manager  by  ordinance,  as  in  Staun- 
ton. So  far  the  city-manager  movement  has  been  confined  very 
largely  to  the  smaller  cities  of  the  country.  Only  two  cities  of 
more  than  one  hundred  thousand  inhabitants  —  Dayton,  Ohio, 
and  Grand  Rapids,  Michigan  —  have  come  under  this  plan, 
each  having  a  population  of  about  one  hundred  and  twenty- 
three  thousand.  Other  cities  of  fairly  large  size  are  Wichita, 
Kansas,  64,972;  Springfield,  Ohio,  50,058;  Wheeling,  West 
Virginia,  42,957;  Portsmouth,  Virginia,  37,000;  Niagara  Falls, 
New  York,  35,127;  San  Jose,  California,  37,010;  Jackson, 
Michigan,  34,202;  Watertown,  New  York,  26,730;  and  New- 
burgh,  New  York,  27,805.  Most  of  the  city-manager  cities, 
however,  are  places  with  populations  of  from  two  thousand  to 
twenty-five  thousand,  thus  showing  that  the  movement  has 
been  chiefly  a  small  city  development. ^ 

Methods  of  Adoption. 
The  city-manager  plan  has  been  established  in  the  various 
municipalities  by  four  different  methods:    namely,   home-rule 
charters,    special    legislative    charters,    general    city-manager 

1  S.  D.  Holsinger,  General  Manager  Plan  of  Government  of  Staunton,  Virginia,  7-S. 
s  Laws  of  South  Carolina,  191£,  Act  No.  453.     In  effect  January  I,  1913. 
•  For  a  list  of  city-manager  cities  see  Appendix  C. 


496 

charter  laws  or  codes,  and  optional  charter  acts.  In  this  con- 
nection it  should  be  made  clear  that  no  State  has  provided  in 
its  constitution  for  the  city-manager  plan  as  such,  and  that  the 
movement  has  been  the  result  of  charter  revision  and  legislative 
action.  Twelve  State  constitutions,  however,  contain  home-rule 
provisions  which  give  to  cities  the  right  to  frame  and  adopt  their 
own  charters,  and  a  number  of  cities  in  such  States  as  Cali- 
fornia, Ohio,  Michigan  and  Texas,  acting  under  these  grants  of 
power,  have  drawn  up  home-rule  charters  establishing  the  city- 
manager  system. 

In  addition  to  the  home-rule  charter  plan,  the  next  most  im- 
portant method  of  providing  for  the  city-manager  scheme  is  by 
special  charter  acts  passed  by  the  Legislature  for  each  individual 
city.  Then  in  the  five  States  of  Idaho,  Iowa,  Kansas,  Louisi- 
ana and  Montana  general  city-manager  codes  have  been  en- 
acted, the  provisions  of  which  may  be  adopted  by  any  city  by 
popular  vote.^  Very  similar  to  the  general  city-manager  laws 
are  the  optional  charter  acts  of  Massachusetts,  New  York, 
North  Carolina,  Ohio  and  Virginia,  which  enable  a  city  to  adopt 
any  one  of  several  plans  of  government,  including  the  manager 
form.^ 

Then,  too,  a  number  of  municipalities  such  as  Staunton  and 
Fredericksburg,  Virginia,  have  a  modified  plan  of  government  by 
a  manager.  In  these  cities  the  aldermanic  form  of  organization 
is  retained,  and  the  only  change  is  that  certain  of  the  adminis- 
trative functions  and  duties  of  the  city  are  assigned  to  a  general 
superintendent  or  manager  whose  position  has  been  provided  for 
merely  by  ordinance  of  the  city  council.  Such  cities,  of  course, 
do  not  possess  all  the  essentials  of  the  orthodox  manager  plan, 
such  as  the  small  commission,  initiative  and  referendum,  and  so 
on.  Also  the  organization  is  less  stable  than  if  it  were  provided 
by  charter  or  by  statute,  since  it  may  be  abolished  at  any  time 
by  vote  of  the  council.  Strictly  speaking,  these  cities  should  be 
considered  as  having  only  a  partial  or  modified  city-manager 
plan. 

1  Reference  to  laws  of  Idaho,  Kansas,  Iowa  and  Montana  in  National  Municipal  Review,  VI, 
416^17  (May,  1917);   Louisiana,  Ibid.,  VII,  530  (Sept.,  1918). 

2  General  Acts  of  Massachusetts,  1915,  Chap.  267;  Laws  of  New  York,  19i4,  Chap.  444;  Laws  of 
Ohio,  1913,  767-786;  North  Carolina  Legislature,  "An  Act  to  provide  for  the  organization  and  gov- 
ernment of  cities,"  March,  1917;  Laws  of  Virginia,  1914,  Chap.  94. 


497 


III.  The  Dayton  City-Manager  Plan. 
Considerable  variation  as  to  details  is  found  in  the  several 
city-manager  charters,  but  only  a  few  of  the  points  of  difference 
are  of  essential  importance.  Since  the  Dayton  charter  has  been 
the  model  for  other  municipalities,  it  is  believed  that  an 
analysis  of  its  provisions  will  best  serve  as  a  method  of  making 
clear  the  fundamental  features  of  the  system  in  general.^ 

The  Commission. 

Under  the  Dayton  charter,  provision  is  made  for  a  commission 
of  five  citizens  elected  at  large  by  the  people  for  a  term  of  four 
years,  either  two  or  three  commissioners  being  chosen  every  two 
years  so  as  to  make  the  commission  a  continuous  body.  Nomina- 
tions are  made  at  a  non-partisan  primary  and  any  qualified  voter 
is  entitled  to  have  his  name  placed  on  the  primary  ballot  by 
filing  a  petition  signed  by  at  least  two  per  cent  of  the  registered 
voters.  The  names  receiving  the  largest  number  of  votes  at  the 
primary  are  placed  on  the  final  ballot  without  party  designa- 
tion,- and  the  two  or  three  candidates,  as  the  case  may  be, 
who  obtain  the  highest  votes  at  the  election  are  declared 
elected.  The  commissioner  who  receives  the  greatest  number  of 
votes  is  designated  as  mayor,^  but  he  is  little  more  than  a 
figurehead  and  has  no  special  powers  except  to  preside  at  meet- 
ings of  the  commission  and  to  act  as  the  official  head  of  the  city 
for  ceremonial  purposes  and  for  the  purpose  of  serving  civil 
processes  against  the  city.  The  salary  of  the  mayor  is  fixed  at 
$1,800  and  that  of  each  commissioner  at  $1,200.'* 

The  duties  of  the  commission  are  to  enact  ordinances  and 
regulations  for  the  government  of  the  city,  to  raise  taxes  and 
vote  appropriations,  create  or  abolish  departments,  investigate 
the  financial  transactions  or  the  official  acts  of  any  officer  or  de- 
partment, and  finally  the  very  important  function  of  appointing 
the  city-manager. 

>  Charter  for  the  city  of  Dayton  adopted  by  the  people  August  12,  1913.  For  summary  see 
Appendix  A. 

'  The  number  of  candidates  who  are  entitled  to  have  their  names  placed  on  the  final  ballot  is 
limited  to  twice  the  number  to  be  elected;  i.e.,  if  three  candidates  are  to  be  chosen,  the  names  of 
the  six  receiving  the  highest  votes  at  the  primary  are  placed  on  the  ballot  for  final  election.  See 
Dajton  Charter,  Sects.  4-12. 

•  The  mayor  is  the  candidate  who  receives  the  largest  vote  at  the  election  at  which  three  com- 
missioners are  chosen. 

*  Da>-ton  Charter,  Sects.  36-38. 


498 


The  City  Manager. 

From  the  above  description  of  the  commission's  powers  and 
duties,  it  is  seen  that  this  body  does  not  have  anything  directly 
to  do  with  the  actual  management  of  the  various  departments, 
but  delegates  these  responsibilities  to  its  appointee,  the  city 
manager.  The  city  manager  is  the  administrative  head  of  the 
municipality  and  is  responsible  to  the  commission  for  the 
eflficient  administration  of  all  the  departments  under  his  charge. 
He  is  appointed  without  regard  to  his  political  beliefs,  is  not 
required  to  be  a  resident  of  the  city  of  Dayton,  and  receives 
such  salary  as  the  commission  may  determine,  which  was 
$12,500  at  first  and  is  now  $7,500.  The  city  manager  is  not 
appointed  for  any  definite  term,  but  serves  during  the  pleasure 
of  the  commission  except  that  he  may  be  recalled  by  the  people 
in  a  manner  to  be  described  later.  In  providing  for  the  recall 
of  the  manager,  the  Dayton  charter  differs  from  that  of  the 
other  cities.^ 

The  powers  and  duties  of  the  city  manager  may  be  divided 
into  four  groups.  (1)  First  of  all,  in  an  advisory  capacity,  he 
attends  the  meetings  of  the  commission  with  the  right  to  be 
heard  and  to  make  recommendations,  but  not  to  vote.  In  this 
connection  it  is  his  duty  to  keep  the  commission  informed  as  to 
the  financial  condition  and  needs  of  the  city.  (2)  Secondly,  he 
must  see  that  all  laws  and  ordinances  are  enforced.  (3)  In  the 
third  place,  he  appoints  all  directors  of  departments  and  sub- 
ordinate employees  subject,  however,  in  the  case  of  minor 
ofiicials,  to  civil  service  regulations,  and  may  suspend  or  dismiss 
any  of  them  for  proper  cause.  In  the  performance  of  these 
functions  he  assigns  to  each  official  the  work  which  he  is  ex- 
pected to  carry  on.  (4)  Finally  the  city  manager  prepares  the 
annual  budget  of  estimated  revenues  and  expenditures  which  is 
submitted  to  the  commission  for  action,  and  is  the  general 
supervisor  of  all  the  work  done  in  the  several  departments.  In 
addition  to  these  duties  which  are  specifically  provided  for  in 
thel^charter,  the  city  manager  is  required  to  perform  such  other 
duties  as  maj^  be  prescribed  by  the  commission.^ 

1  Dayton  Charter,  Sects.  13-20. 

2  Ihid.,  Sects.  47-50. 


499 


Administrative  Departments. 
Under  the  supervision  of  the  city  manager  in  Dayton  there 
are  five  departments,' — the  department  of  finance,  the  depart- 
ment of  lavv,  the  department  of  public  welfare,  the  department 
of  public  safety,  and  the  department  of  public  service,  —  each  in 
charge  of  a  director  appointed  by  and  responsible  to  the  city 
manager  in  all  matters.^  The  heads  of  departments  are  not 
under  civil  service,  but  the  appointments  of  all  other  subordi- 
nate officials  except  the  deputy  directors  are  made  after  com- 
petitive examinations.  The  charter  provides  for  a  civil  service 
board  of  three  to  be  appointed  by  the  commission  for  the 
purpose  of  conducting  such  examinations  and  for  administering 
the  merit  system  in  general.^ 

Initiative,  Referendum  and  Recall. 

In  addition  to  the  above  essential  features,  the  Dayton 
charter  provides  also  for  the  initiative,  the  referendum  and  the 
recall.  Upon  petition  of  ten  per  cent  of  the  total  number  of 
registered  voters,  an  ordinance  may  be  drawn  up  and  presented 
to  the  commission  whose  duty  it  is  to  take  action  on  the  same 
within  thirty  days.  If  the  commission  rejects  the  proposed 
ordinance  or  amends  it,  the  people  may  demand  its  submission 
to  a  popular  vote  by  filing  a  petition  signed  by  an  additional 
fifteen  per  cent  of  the  voters.  It  is  further  provided  that  any 
ordinance  enacted  by  the  commission  must  be  submitted  to  a 
referendum  vote  upon  presentation  of  a  petition  signed  by 
twenty-five  per  cent  of  the  registered  voters.^ 

Provision  is  also  made  in  the  Dayton  charter  for  the  popular 
recall  of  members  of  the  commission  and  of  the  city  manager. 
Whenever  a  petition  is  filed  by  at  least  twenty-five  per  cent  of 
the  registered  voters  demanding  the  removal  of  a  commissioner 
or  the  manager,  a  recall  election  must  be  held  within  sixty  days, 
provided  the  official  against  whom  charges  are  made  does  not 
resign  in  the  meantime.  At  the  recall  election  a  vote  is  taken 
on  the  question  as  to  whether  the  official  should  be  recalled  and 
also  upon  the  names  of  candidates  to  succeed  him  in  case  a 

1  Dayton  Charter,  Sects.  51-87. 

2  Ibid.,  Sects.  93-107. 
«  Ibid.,  Sects.  21-35. 


500 

majority  of  the  voters  are  in  favor  of  such  recall.  Unlike  the 
usual  arrangement,  the  name  of  the  person  whose  removal  is 
sought  may  not  appear  on  the  recall  ballot  as  a  candidate  to 
succeed  himself.^ 

IV.    The  City-Manager  Plan  in  Other  Cities. 
In  General. 

As  a  general  rule  the  charters  of  other  city-manager  munici- 
palities provide  for  a  plan  of  government  which  is  very  similar 
to  that  of  Dayton,  with  the  exception  that  in  a  number  of  the 
smaller  cities  provision  is  not  made  for  such  a  highly  central- 
ized departmental  organization.  In  some  cities,  such  as  Ash- 
tabula, Ohio,  for  example,  the  charter  provides  for  separate 
directors  for  only  a  part  of  the  departments,  and  stipulates  that 
the  city  manager  shall  be  the  acting  head  of  all  other  depart- 
ments unless  otherwise  ordered  by  the  commission.^ 

The  charters  of  some  of  the  cities  also  differ  from  that  of 
Dayton  in  that  they  do  not  give  the  city  manager  the  entire 
responsibility  for  administering  the  city's  finances.  This 
tendency  is  illustrated  in  the  Springfield,  Ohio,  charter,  where 
the  city  auditor,  treasurer  and  purchasing  agent  are  appointed 
by  the  commission  instead  of  by  the  city  manager,  and  in  the 
charter  of  Grand  Rapids,  Michigan,  where  the  comptroller  is 
elected  by  the  people  and  the  city  treasurer  and  city  assessors 
by  the  commission.^  It  is  not  unusual  to  find  also  that  the 
city  clerk  and  sometimes  the  solicitor  are  appointed  by  the 
commission  instead  of  by  the  manager.  The  argument  ad- 
vanced in  favor  of  the  decentralization  of  financial  administra- 
tion is  that  it  places  a  check  upon  the  city  manager  in  the 
expenditure  of  funds. 

The  Ashtabula  Plan. 
As  explained  above,  Dayton  and  most  of  the  other  cities 
provide  for  the  election  of  members  of  the  commission  from  the 
city  at  large.  This  method  has  been  criticized  by  some  persons 
on  the  ground  that  it  does  not  provide  for  the  proper  reflection 
of  minority  wishes.     Ashtabula,  Ohio,  has  attempted  to  solve 

1  Dayton  Charter,  Sects.  13-20. 
»  Charter  of  the  City  of  Ashtabula,  Sect.  29. 

'  Charter  of  Springfield,  Ohio,  Sects.  19-23;   Charter  of   Grand  Rapids,  Michigan,  Title   II, 
Sects.  2,  3. 


501 

the  problem  by  providing  in  its  charter  for  the  Hare  system  of 
proportional  representation,  the  purpose  of  which  is  to  give  to 
any  group  of  electors  which  can  control  an  appreciable  block  of 
votes  a  number  of  representatives  roughly  in  proportion  to  its 
relative  strength.^ 

Under  the  Ashtabula  charter  there  are  seven  members  on  the 
council.  The  procedure  of  election  as  described  by  Dr.  A.  R. 
Hatton  is  as  follows:  At  the  left  of  each  name  on  the  ballot 
"is  a  square  in  which  the  voter  marks  his  preference  by  placing 
the  figure  1  opposite  the  name  of  his  first  choice,  2  opposite  the 
name  of  his  second  choice  and  so  on.  He  may  mark  as  many 
preferences  as  he  pleases,  but  a  ballot  can  count  for  only  one 
candidate.  To  determine  the  number  of  votes  necessary  for 
election  to  the  council  the  total  number  of  valid  ballots  is 
divided  by  eight,  and  the  whole  number  next  higher  than  this 
quotient  is  taken  as  the  number  of  votes  required  to  elect."^ 
For  example,  at  the  first  election  in  November,  1915,  the  total 
number  of  valid  ballots  cast  was  2,972,  which  number  divided 
by  eight  gives  a  quotient  of  372,  or  the  number  of  votes  re- 
quired for  election.  The  number  so  established  is  known  as  the 
"quota." 

In  counting  the  votes  the  process  is  as  follows: 

If  upon  counting  the  first-choice  votes  any  candidate  is  found  to  have 
received  the  full  quota  or  more,  he  is  at  once  declared  elected.  Any  votes 
which  such  a  candidate  has  above  the  quota  are  then  transferred,  accord- 
ing to  the  highest  available  choice  marked  on  such  ballots,  to  candidates 
not  already  elected.  It  may  happen  that  several  candidates  receive  more 
than  the  necessary  quota.  In  that  case  the  surplus  votes  are  transferred 
to  other  candidates  in  the  order  of  size  of  the  surplus. 

Whenever  during  the  transfer  of  votes  the  number  of  ballots  for  any 
candidate  equals  the  quota,  he  is  declared  elected  and  no  further  votes 
are  transferred  to  him.  When  all  surplus  votes  are  transferred,  if  enough 
candidates  to  fill  all  the  places  have  not  reached  the  quota,  the  lowest 
on  the  fist  is  dropped  and  his  votes  are  transferred  in  like  manner.  This 
process  continues  until  the  required  number  of  candidates  have  received 
the  quota,  or  until,  by  dropping  the  low  men,  only  seven  remain.' 

'  Charter  of  Ashtabula,  Ohio,  Sects.  46-1,  46-2.    Amendment  adopted  August  10,  1915. 

»  Professor  A.  R.  Hatton,  "The  Ashtabula  Plan,"  National  Municipal  Review,  V,  56-65  (1916). 

«  Ibid.,  59-60  (1910).  As  a  result  of  the  first  election  under  this  plan  it  is  reported  that  the 
business,  professional  and  laboring  interests  were  represented  on  the  commission,  also  the  various 
nationalities  and  political  parties.  Ibid.,  61.  The  system  has  not  been  adopted  by  any  other 
American  city  and  has  been  in  operation  in  Ashtabula  for  too  short  a  period  to  draw  any  definite 
conclusions  as  to  its  workings. 


502 


V.    The  City-Manager  Plan  in  Massachusetts. 
The  Optional  Charter  Law. 

Geographically  most  of  the  municipalities  under  the  city- 
manager  plan  are  to  be  found  outside  of  New  England,  especially 
in  the  west  and  southwest.  Auburn,  Maine,  was  granted  a 
special  city-manager  charter  in  1917,  effective  January  1,  1918. 
Massachusetts  is  the  only  one  of  the  New  England  States  which 
has  authorized  the  introduction  of  the  new  system  by  a  general 
law.  In  1915  the  Legislature  of  the  Commonwealth  enacted  an 
optional  charter  law  under  which  any  city  may  adopt  Plan  D 
providing  for  the  city-manager  form.^  Provision  is  made  in 
this  act  for  a  city  council  of  five  members  elected  from  the  city 
at  large  for  two  years,  either  two  or  three  members  being  chosen 
each  year.  The  councillor  receiving  the  largest  number  of  votes 
at  the  election  at  which  three  members  are  elected  is  given  the 
title  of  mayor,  but  has  no  extraordinary  powers  except  to  pre- 
side at  meetings  of  the  council.  The  mayor  and  councillors 
receive  such  salaries  as  may  be  determined  by  vote  of  the 
council,  except  that  the  compensation  of  the  former  may  not 
exceed  $2,000  per  annum  and  that  of  the  latter  $500  each. 

The  city  manager  is  appointed  by  the  council  on  the  basis  of 
merit  alone,  holds  office  during  the  pleasure  of  that  body,  is  not 
required  to  be  a  resident  of  the  city  when  chosen,  and  has  the 
usual  powers  and  duties  assigned  to  city  managers.  The  initia- 
tive and  referendum  are  included,  but  there  is  no  provision  for 
the  recall  of  either  the  city  manager  or  members  of  the  council. 
Waltham  is  the  only  city  in  Massachusetts  which  has  adopted 
the  city  manager  plan  of  government  as  provided  for  in  the 
optional  charter  act. 

The  Norwood  Toum-Manager  Plan. 
Although  but  one  city  in  the  Commonwealth  has  yet  adopted 
Plan  D  of  the  optional  charter  law,  the  town  of  Norwood  in 
1914  obtained  a  special  act  from  the  Legislature  authorizing  the 
reorganization  of  its  government  so  as  to  provide  for  a  town 
manager. 2     Under  the  Norwood  plan  the  town  meeting  is  re- 

'  General  Acts  of  Massachusetts,  1915,  Chap.  267,  Part  V,  Plan  D,  Sects.  1-14.    See  Appendix  B. 
'  Acts  and  Resolves  of  Massachusetts,  1914,  Chap.  197. 


503 

tained  for  the  purposes  of  legislation  and  the  voting  of  taxes 
and  appropriations.  Five  selectmen  are  then  elected  by  the 
voters  for  terms  of  three  years  each,  to  have  general  oversight 
of  town  affairs  and  to  appoint  a  town  manager.  The  act  pro- 
vides for  the  abolition  of  a  number  of  independent  offices  and 
boards  including  the  water  commissioners,  sewer  commissioners, 
park  commissioners,  municipal  light  board  and  tree  warden,  and 
transfers  their  duties  to  the  selectmen  \vho  in  turn  appoint  a 
town  manager  to  look  after  the  actual  administration  of  the 
same. 

The  po\vers  and  duties  of  the  general  manager  in  Norwood 
are  with  a  few  exceptions  much  the  same  as  in  other  mu- 
nicipalities under  the  manager  type  of  government.  According 
to  the  act  providing  for  the  administration  of  towm  affairs  his 
functions  include  the  following: 

(a)  To  organize,  continue  or  discontinue  such  divisions  or  departments 
from  time  to  time  as  uxeiy  be  determined  by  vote  of  the  selectmen,  or  in 
the  absence  of  such  vote,  as  may  be  determined  by  said  general  manager 
to  be  required  for  the  efficient  conduct  of  his  office; 

(6)  To  appoint  upon  merit  and  fitness  alone,  and  ...  to  remove  all 
superintendents  or  chiefs  of  departments  and  all  subordinate  officers  and 
employees  in  such  departments,  and  to  fix  all  salaries  and  wages  of  all 
subordinates  and  employees  subject  to  law.  The  superintendents  or 
chiefs  of  departments  shall  not  be  removed  by  the  general  manager  ex- 
cept on  five  daj's'  notice  in  writing  which  shall  state  the  cause  of  such 
removal; 

(c)  To  exercise  control  over  all  such  departments  or  divisions  so  created, 
or  that  may  hereafter  be  created,  which  shall  be  made  subject  to  the 
supervision  of  said  general  manager; 

(d)  To  attend  all  regular  meetings  of  the  selectmen,  and  to  recommend 
to  the  selectmen  for  adoption  such  measures  requiring  action  by  them  or 
by  the  town  as  he  may  deem  necessarj^  or  expedient; 

(e)  To  keep  full  and  complete  records  of  the  doings  of  his  office,  and 
to  render  as  often  as  may  be  required  by  the  selectmen  a  full  report  of  all 
operations  during  the  period  reported  on; 

(/)  To  keep  the  selectmen  fully  advised  as  to  the  needs  of  the  town 
within  the  scope  of  his  duties,  and  to  furnish  the  selectmen  on  or  before 
the  thirty-first  day  of  December  of  each  year  a  careful,  detailed  estimate 
in  writing  of  the  appropriations  required  during  the  next  ensuing  fiscal 
year  for  the  proper  conduct  of  all  departments  of  the  town  under  his 
control; 

(g)  To  keep  in  repair  the  .  .  .  hbrary  and  all  school  and  other  town 
buildings  and  to  purchase  all  supplies  for  every  department  of  the  town  . . .; 


504 

(h)  To  perform  such  other  duties,  consistent  with  his  office  as  may 
be  required  of  him  by  the  bA'-laws  of  the  town  or  by  vote  of  the  select- 
men; 

(i)  To  have  control  and  supervision  of  the  department  of  police  of  the 
town,  subject,  however,  to  the  direction  of  the  selectmen.^ 

In  pursuance  of  this  act  the  town  manager  has  been  given 
charge  of  the  police  and  fire  departments,  the  care  of  parks  and 
public  buildings,  the  management  of  the  water  and  light  plants, 
the  construction,  repair  and  maintenance  of  highways,  sewers 
and  bridges,  and  other  work  of  an  engineering  nature.  But 
contrary  to  the  practice  in  most  city-manager  municipalities, 
the  administration  of  finances,  public  health  and  poor  relief 
has  been  assigned  to  authorities  other  than  the  manager.  The 
collection  and  disbursement  of  funds  and  the  keeping  of  ac- 
counts are  under  the  control  of  the  treasurer  and  the  town 
accountant  appointed  by  the  selectmen.  In  addition  to  these 
two  fiscal  officers  there  is  a  finance  commission  of  three  members 
elected  by  the  voters  to  prepare  the  annual  budget,  investigate 
all  articles  in  the  town  warrant  requesting  the  appropriation  of 
money,  and  to  have  general  oversight  of  the  entire  finances  of 
the  town.  The  protection  of  the  health  of  the  community  is 
under  the  supervision  of  a  popularly  elected  board  of  health  of 
three  members,  while  the  care  of  the  poor  is  entrusted  to  a 
board  of  relief  appointed  by  the  selectmen. 

Thus  it  is  seen  that  according  to  the  Norwood  plan  the 
manager  is  directly  responsible  for  the  siipervision  of  only  a 
part  of  the  departments  of  the  town  and  that  his  powers  and 
duties  are  confined  very  largely  to  the  administration  of  public 
safety  and  public  w^orks,  the  purchase  of  supplies,  and  the 
general  oversight  of  such  other  matters  as  the  selectmen  may 
from  time  to  time  assign  to  him. 

No  provision  is  made  in  the  Norwood  act  for  the  initiative 
and  referendum  as  such,  since  the  people  already  have  the 
power  of  direct  legislation  through  their  town  meetings.  The 
selectmen,  however,  are  made  subject  to  the  recall  and  an 
election  for  the  removal  of  any  or  all  of  the  selectmen  may  be 
called  upon  petition   of  two  hundred  qualified  voters.     Any 

i  Acta  and  Resolves  of  Massachusetts,  1914,  Chap.  197.  Sect.  9. 


505 

selectman   whose  removal   is   sought   may  be   a  candidate  to 
succeed  himself.^ 

The  operation  of  the  manager  plan  in  Norwood  has  attracted 
the  attention  of  other  communities  in  the  State  with  the  result 
that  several  towns  have  been  considering  the  adoption  of  a 
similar  form  of  government.  In  1917  Winchester,  by  a  vote 
of  959  to  497,  rejected  the  plan,  while  Waltham,  by  a  vote  of 
1,882  to  1,503,  accepted  it.  A  bill  was  also  introduced  in  the 
1917  session  of  the  Legislature  providing  for  an  optional  town 
charter  act  somewhat  similar  to  the  optional  charter  law  for 
cities,  which  would  permit  any  town  to  adopt  one  of  several 
plans,  including  the  manager  system.^  This  bill  did  not  be- 
come a  law,  and  an  order  creating  a  recess  committee  to  make 
a  further  study  of  the  matter  and  to  report  its  findings  at  the 
next  session  of  the  Legislature  was  rejected. 

VI.  Conclusion, 
Since  the  city-manager  plan  has  been  in  operation  for  only  a 
few  years,  it  is  difficult  to  state  any  definite  conclusions  as  to 
its  actual  results.  Letters  and  reports,  however,  from  officials 
in  nine  representative  cities  —  Dayton  (123,794);  Springfield, 
Ohio  (50,058);  Jackson,  Michigan  (34,202);  Sherman,  Texas 
(12,412);  Bakersfield,  California  (12,727);  Manistee,  Michigan 
(12,381);  Staunton,  Virginia  (10,604);  Amarillo,  Texas  (10,000); 
and  La  Grande,  Oregon  (7,000)  —  show  that  central  purchasing 
departments  have  been  established  in  eight  of  the  nine  places; 
that  in  all  but  one  the  accounting  methods  have  been  reorgan- 
ized; and  that  in  all  but  four  new  budget  systems  have  been 
introduced.  At  the  time  the  above  information  was  obtained 
none  of  the  cities  had  found  it  necessary  to  issue  bonds  for  cur- 
rent expenses  incurred  during  the  city-manager  administration. 
The  following  is  a  tabular  view  of  the  financial  administration  of 
the  above-mentioned  cities  under  the  city-manager  plan :  ^ 

>  For  the  workings  of  town-manager  plan  in  Norwood  see  Forty-fifth  Annual  Report  of  the 
Town  of  Norwood,  1918,  103-132;  and  also  Second  Anrnial  Report  of  the  Proceedings  of  the  City  Man- 
agers' Association,  held  in  Dayton,  1915,  81-82. 

s  Hoiise  Bill  No.  1080,  Massachusetts  General  Court,  1917,  "An  Act  to  modify  town  government 
and  to  provide  for  a  limited  town  meeting." 

'  Information  obtained  from  questionnaires  sent  to  city  managers  in  1915-16  by  the  Bureau  for 
Research  in  Municipal  Government,  Harvard  University,  and  from  annual  reports  of  city  man- 
agers, 1914-16. 


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Budget     estimates      sub- 
mitted by  the  city  man- 
ager.     Segregated   type 
of     budget     adopted. 
Uniform  classification  of 
items   according   to   de- 
partment and  object  of 
expenditure. 

6 

O 
M 

03 

M 
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d 
P5 

City     manager     presents 
budget  estimates  to  com- 
mission.    Question  as  to 
form     of     budget     un- 
answered. 

City     manager     presents 
budget    items    to    com- 
mission.    Modified 
"lump    sum"    type    of 
budget. 

Complete     double     entry 
system  of  accounting  in- 
stalled.      All     accounts 
kept  by  Finance  Depart- 
ment,   except    for    City 
Hospital  and  Park  Trus- 
tees,   who    use    uniform 
system. 

_2 

03 

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a 

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03 

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t-H 

City  manager  reports  the 
installation    of    an    im- 
proved   system    of    ac- 
counting. 

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Tax  rate  for  city  pur- 
poses   lowered    from 
$16.62     per     $1,000 
valuation  during  1913 
to  $13.51  in  1915-16, 
or  decrease  of  $2.61 
per  $1,000. 

1 

1 

1 

Outstanding  bonded  indebt- 
edness reduced  by  $50,000 
and   floating  indebtedness 
of  $14,000  paid  off.     Sink- 
ing fund  balance  increased 
from   $27,000   to   $45,000. 
Bonds  have  not   been  is- 
sued for  current  expenses. 

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$20,000  delinquent  taxes  col- 
lected;  had  been  on  books 
many  years.     "Have   not 
found  it  necessary  to  bor- 
row any  money  under  city- 
manager  plan;  not  even  in 
anticipation      of      taxes" 
(1915). 

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budget  estimates  to  the 
commission. 

-a 
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provides  for  a  full  segre- 
gation of  all  items  of  ex- 
pense   in    each    depart- 
ment. 

d 
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$110,000     from     previous 
administration  reduced  hv 

almost    one    half    in    two 
years.     Water   and    street 
departments  put  on  a  cash 
paying    basis.     No    bonds 
for  current  expenses. 

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509 


Appendix  A 


DIGEST  OF  THE  CHARTER  OF  DAYTON. i 
Home  Rule  Charter  adopted  by  the  people  in  1913. 

Governing  Body: 
Title:  Commission. 
Number:  Five. 

Term:  Four  years.     Partial  renewal  biennially. 
Removal:  Recall. 
Salary:  Twelve  hundred  dollars  (Mayor,  $1,800). 

Mayor  : 
Sec.  36.  The  mayor  shall  be  that  member  of  the  commission  who, 
at  the  regular  municipal  election  at  which  the  three  commissioners 
were  elected,  received  the  highest  number  of  votes,  except  that 
at  the  first  regular  municipal  election  held  under  this  charter  the 
mayor  shall  be  the  conmaissioner  receiving  the  highest  number  of 
votes.  .  .  .  The  mayor  shall  be  the  presiding  officer,  except  that 
in  his  absence  a  president  pro  tempore  may  be  chosen.  The  mayor 
shall  exercise  such  powers  conferred  and  perform  all  duties  imposed 
upon  him  b)^  this  charter,  the  ordinances  of  the  city  and  the  laws 
of  the  State.  He  shall  be  recognized  as  the  official  head  of  the  city 
by  the  courts  for  the  purpose  of  serving  civil  processes,  by  the 
Governor  for  the  purposes  of  the  military  law,  and  for  all  cere- 
monial purposes. 

City  Manager: 
Sec.  47.     The  commission  shall  appoint  a  city  manager  who  shall  be 

the  administrative  head  of  the  municipal  government  and  shall 

be  responsible  for  the  efficient  administration  of  all  departments. 

He  shall  be  appointed  without  regard  to  his  pohtical  beliefs  and 

may  or  may  not  be  a  resident  of  the  city  of  Dayton  when  appointed. 

He  shall  hold  office  at  the  will  of  the  commission  and  shall  be 

subject  to  recall  as  herein  provided. 
Sec.  48.     Powers  and  Duties  of  the  City  Manager.     The  powers  and 

duties  of  the  city  manager  shall  be 
(a)  To  see  that  the  laws  and  ordinances  are  enforced. 

1  From  Loose  Leaf  Digest  of  Short  Ballot  Charters,  edited  by  Charles  A.  Beard  for  the  Short 
Ballot  Organization,  New  York,  1911-15. 


510 

City  IVIanager  —  Concluded. 
Sec.  48.    Powers  and  Duties  of  the  City  Manager  —  Concluded. 

(b)  To  appoint  and,  except  as  herein  provided,  remove  all  directors 
of  departments  and  aU  subordinate  officers  and  employees  in  the 
departments  in  both  the  classified  and  unclassified  service;  all 
appointments  to  be  upon  merit  and  fitness  alone,  and  in  the  classi- 
fied service  all  appointments  and  removals  to  be  subject  to  the 
civil  service  provisions  of  this  charter; 

(c)  To  exercise  control  over  all  departments  and  divisions  created 
herein  or  that  may  be  hereafter  created  by  the  commission ; 

(d)  To  attend  all  meetings  of  the  commission,  with  the  right  to  take 
part  in  the  discussion  but  having  no  vote; 

(e)  To  recommend  to  the  cormnission  for  adoption  such  measures 
as  he  may  deem  necessary  or  expedient; 

C/)   To  keep  the  commission  fully  advised  as  to  the  financial  condition 

and  needs  of  the  city;  and 
(g)  To  perform  such  other  duties  as  may  be  prescribed  by  this  charter 

or  be  required  of  him  by  ordinance  or  resolution  of  the  commission. 
Sec.  49.    Salary.    The  city  manager  shall  receive  such  salary  as  may 

be  fixed  by  ordinance  of  the  commission. 

Appointments: 

Enumeration:  (1)  City  Manager,  Civil  Service  Board,  Clerk  of  the 
Commission;  (2)  City  Attorney,  Director  of  Public  Service,  Direc- 
tor of  PubUc  Welfare,  Director  of  PubUc  Safety,  Director  of  Fi- 
nance; (3)  The  following  subordinate  officers:  Health  Officer, 
Chief  of  PoKce,  Fire  Chief,  City  Accountant,  City  Treasurer,  City 
Purchasing  Agent. 

Manner:  Group  (1)  by  the  Commission;  Groups  (2)  and  (3)  by  the 
City  Manager. 

Civil  Service  Provisions:  The  following  officers  are  in  the  unclassified 
service :  Those  elected  by  the  people,  the  City  Manager,  the  heads 
of  departments  and  divisions  of  departments,  members  of  appoin- 
tive boards,  the  Clerk  of  the  Coramission,  and  the  deputies  and 
secretaries  of  the  City  Manager,  and  one  assistant  or  deputy  and 
one  secretary  for  each  department. 
All  other  positions  are  in  the  classified  service  in  the  competitive, 
non-competitive  or  labor  divisions,  and  are  under  the  regulations 
of  the  Civil  Service  Board. 

Election  Provisions: 

Non-partisan  nominations  and  elections.     Names  are  placed  on  the 

ballot  at  the  primary  election  by  petition  of  two  per  cent  of  the 

registered  voters. 
Candidates  to  twice  the  number  of  offices  to  be  filled,  receiving  the 

highest  number  of  votes  at  the  primary  are  the  candidates  at  the 

second  election. 


511 

Initiative  : 
Petition  of  ten  per  cent  of  the  registered  voters  to  bring  the  ordinance 
to  the  attention  of  the  council;  after  thirty  days  a  petition  of  an 
additional  fifteen  per  cent  to  have  it  submitted  to  the  people 
(special  election). 

Referendum  : 
Petition  of  twenty-five  per  cent  of  the  registered  voters  (special  election). 

Recall  : 

Petition  of  twenty-five  per  cent  of  the  registered  voters. 

No  recall  petition  may  be  filed  within  the  first  six  months  of  office.  The 
question  of  removal  is  separated  from  that  of  the  choice  of  a  suc- 
cessor, and  the  name  of  the  officer  sought  to  be  recalled  does  not 
appear  as  a  candidate  to  succeed  himself. 

The  recall  may  be  applied  to  the  City  Manager. 


512 


Appendix  B 


PLAN  D  PROVIDED  FOR  IN  THE  MASSACHUSETTS  OPTIONAL 

CHARTER  LAW. 

General  Acts  of  Massachusetts,  1915,  Chapter  267. 

Section  3.  The  government  of  the  city  and  the  general  management 
and  control  of  all  its  affairs  shall  be  vested  in  a  citj'  council,  which  shall 
be  elected  and  shall  exercise  its  powers  in  the  manner  herein  and  in  Part 
I  set  forth;  except  that  the  city  manager  shall  have  the  authority  herein- 
after specified,  and  that  the  general  management  and  conduct  of  the 
pubUc  schools  of  the  city  and  of  the  property  pertaining  thereto  shall  be 
vested  in  the  school  committee. 

Section  4.  The  city  council  shall  consist  of  five  members,  who  shall 
be  elected  at  large  by  and  from  the  qualified  voters  of  the  city  for  a  term 
of  two  years  and  until  their  successors  are  elected  and  quaUfied;  except 
that  at  the  first  election  the  three  candidates  ha^^ng  the  highest  number 
of  votes  shall  serve  for  two  years  and  the  two  candidates  ha\dng  the  next 
highest  number  of  votes  shall  serve  for  one  year. 

Section  5.  All  the  legislative  powers  of  the  city  shaU  be  vested  in  the 
city  council  .  .  . 

Section  9.  The  mayor  shall  be  that  member  of  the  city  council  who, 
at  the  regular  municipal  election  at  which  the  three  members  of  the  council 
were  elected,  received  the  highest  number  of  votes,  except  that  at  the 
first  regular  municipal  election  held  in  a  city  adopting  this  plan  of  gov- 
ernment the  mayor  shall  be  the  councillor  receiving  the  highest  number 
of  votes.  .  .  .  The  mayor  shall  be  the  presiding  officer,  except  that  in 
his  absence  the  president  of  the  council  shall  preside;  and  in  the  absence 
of  both  the  maj^or  and  the  president  of  the  council,  a  president  pro  tem- 
pore may  be  chosen.  The  mayor  shall  be  the  official  head  of  the  city. 
He  shall  have  no  power  of  veto,  but  shall  have  the  same  power  as  the 
other  members  of  the  council  to  vote  upon  all  measures  coming  before  it. 

Section  10.  The  mayor  shall  receive  for  his  services  such  salary  as 
the  city  council  shall  by  ordinance  determine,  not  exceeding  two  thousand 
dollars  a  year,  and  he  shall  receive  no  other  compensation  from  the  city. 
Such  salary  shall  not  be  increased  or  diminished  during  the  term  for  which 
he  is  elected. 

The  council  may  by  a  vote  of  not  less  than  three  members,  taken  by  call 
of  the  yeas  and  nays,  establish  a  salary  for  its  members,  not  exceeding 
five  hundred  dollars  a  year  for  each.    Such  salary  may  be  reduced,  but 


513 

no  increase  therein  shall  be  made  to  take  effect  during  the  year  in  which 
the  increase  is  voted. 

Section  11.  The  city  council  shall  appoint  a  city  manager,  who  shall 
be  the  administrative  head  of  the  city  government  and  shall  be  respon- 
sible for  the  administration  of  all  departments.  He  shall  be  appointed 
with  regard  to  merit  only,  and  he  need  not  be  a  resident  of  the  city  when 
appointed.  He  shall  hold  office  during  the  pleasure  of  the  city  council 
and  shall  receive  such  compensation  as  it  shall  fix  by  ordinance. 

Section  12.  The  city  manager  shall  (1)  be  the  administrative  head 
of  the  city  government;  (2)  see  that  wdthin  the  city  the  laws  of  the  State 
and  the  ordinances,  resolutions  and  regulations  of  the  council  are  faith- 
full}^  executed;  (3)  attend  all  meetings  of  the  council,  and  recommend 
for  adoption  such  measures  as  he  shall  deem  expedient;  (4)  make  reports 
to  the  council  from  time  to  time  upon  the  affairs  of  the  city,  keep  the 
council  fully  advised  of  the  city's  financial  condition  and  its  future  finan- 
cial needs;  (5)  appoint  and  remove  all  heads  of  departments,  superin- 
tendents and  other  emploj'ees  of  the  citj'. 

Section  13.  Such  city  officers  and  employees  as  the  council  shall 
determine  are  necessarj^  for  the  proper  administration  of  the  city  shall 
be  appointed  by  the  city  manager,  and  any  such  officer  or  employee  may 
be  removed  by  him;  but  the  citj^  manager  shall  report  each  such  appoint- 
ment and  removal  to  the  council  at  the  next  meeting  thereof  following 
any  such  appointment  or  removal. 

Section  14.  The  officers  and  employees  of  the  city  shall  perform 
such  duties  as  may  be  required  of  them  by  the  city  manager,  under  general 
regulations  of  the  city  council. 


514 


Appendix  C 


LIST  OF  CITIES  WITH  CITY  MANAGERS. 

I.  Cities  with  Complete  City-Manager  Plan  established  by  Char- 
ter OR  Statute.  Small  Commission,  Initiative,  Referendum 
ANT)  Other  Essential  Features  usually  provided  for. 

A .  —  Cities  over  50,000,  Five  in  Number. 


City. 

Population 
in  1918. 

In  Effect. 

Salary  of 
Manager. 

Grand  Rapids,  Mich., 
Dayton,  Ohio,            .... 
Norfolk,  Va.,    .          .          .          .          . 
Wichita,  Kan.,           .... 
Springfield,  Ohio,      .... 

128,291 

127,224 

89,610 

70,722 

51,550 

March,  1917 
Jan.,       1914 
Sept.,     1918 
June,      1917 
Jan.,       1914 

$4,000 
7,500 
9,000 

10,000 
6,000 

B.  —  Cities  of  10,000  to  50,000,  Thirty-six  in  Number. 


Kalamazoo,  Mich.,    .          .          .          . 

48,886 

May, 

1918 

$4,200 

Roanoke,  Va., 

45,000 

Sept., 

1918 

- 

Wheeling,  Va., 

43,377 

July, 

1917 

8,000 

Portsmouth,  Va., 

39,651 

Jan., 

1917 

4,500 

San  Jose,  Cal., 

38,902 

July, 

1916 

6,000 

Niagara  Falls,  N.  Y. 

37,353 

Jan., 

1916 

5,000 

Jackson,  Mich., 

35,363 

Jan., 

1915 

4,000 

Waltham,  Mass., 

30,570 

March 

,  1918 

5,000 

Charleston,  W.  Va., 

29,941 

May, 

1915 

3,300 

Watertown,  N.  Y., 

29,894 

Jan., 

1920 

- 

Newburgh,  N.  Y., 

29,603 

Jan., 

1916 

5.000 

Alameda,  Cal., 

27,732 

May, 

1917 

4,000 

Petersburg,  Va., 

25,582 

Sept., 

1920 

- 

Ashtabula,  Ohio, 

21,498 

Jan., 

1916 

2,500 

Sandusky,  Ohio, 

20,193 

Jan., 

1916 

5,000 

Amarillo,  Tex., 

19,124 

Dec, 

1913 

2,400 

PhcBnix,  Ariz., 

18,621 

April, 

1914 

5,000 

Hot  Springs,  Ark., 

17,238 

April, 

1917 

2,500 

Bakersfield,  Cal., 

16,874 

April, 

1915 

3,000 

San  Angelo,  Texas, 

16,500 

April, 

1916 

2,500 

Sioux  Falls,  S.  D., 

16,499 

May, 

1918 

- 

Auburn,  Maine, 

16,393 

Feb., 

1918 

3,600 

Eldorado,  Kan., 

15,000 

July, 

1917 

3,600 

Santa  Barbara,  Cal., 

14,846 

Jan., 

1918 

7,500 

Albuquerque,  N.  Mex., 

14,025 

Jan., 

1918 

3,600 

Sault  Ste.  Marie,  Mich., 

13,919 

Dec, 

1917 

3,600 

Sherman,  Texas, 

13,667 

April, 

1915 

2,400 

Alpena,  Mich., 

13,273 

April, 

1916 

2,500 

East  Cleveland,  Ohio, 

13,214 

Jan., 

1918 

3,600 

Brownsville,  Texas,  . 

13,163 

Jan., 

1916 

3,600 

515 


B.  —  Cities  of  10,000  to  50,000, 

Thirty-six  in 

Nuviber  —  Concluded. 

City. 

Population 
in  1918. 

In  EtTect. 

Salary  of 
Manager. 

High  Point,  N.  C,    .          .          . 
Manistee,  Mich.,        .... 

Tyler,  Texas 

Boulder,  Col 

Goldsboro,  N.  C 

Griffin,  Ga., 

12,896 
12,381 
12,000 
12,000 
10,719 
10,300 

May,      1915 
May,      1914 
April,     1915 
Jan.,       1918 
July,       1917 
Dec,      1918 

$2,700 
2,500 
3,000 
4,000 
3,300 

C.  —  Cities  under  10,000,  Forty-one  in  Nwnber. 


Cadillac,  Mich.,         .... 

9,915 

March 

1914 

$2,000 

Elizabeth  City,  N.  C, 

9,710 

April, 

1915 

1,800 

Sumter,  S.  C, 

9,639 

Jan., 

1913 

1,500 

Alhambra,  Cal., 

9,000 

July, 

1915 

2,000 

Xenia,  Ohio,     . 

8,712 

Jan., 

1918 

3,000 

Taylor,  Texas, 

8,200 

April, 

1914 

2,600 

Rock  Hill,  S.  C, 

8,160 

Jan., 

1915 

2,800 

Albion,  Mich., 

8,000 

Jan., 

1916 

2,000 

Kingsport,  Tenn., 

8,000 

March 

1917 

3,000 

St.  Augustine,  Fla.,  . 

7,960 

July, 

1915 

- 

Grand  Haven,  Mich., 

7,280 

April, 

1915 

2,500 

Denton,  Texas, 

6,830 

April, 

1914 

2,000 

Yoakiun,  Texas, 

6,630 

Arpil, 

1915 

2,100 

Gallipolis,  Ohio, 

6,490 

Jan., 

1918 

1,500 

La  Grande,  Ore., 

6,120 

Oct., 

1913 

2,400 

Webster  City,  Iowa, 

5,950 

Oct., 

1915 

1,800 

Petoskey,  Mich., 

5,610 

April, 

1916 

2,000 

Three  Rivers,  Mich., 

5,610 

April, 

1918 

1,800 

Ocala,  Fla., 

5,610 

Feb., 

1918 

- 

Bryan,  Texas,  . 

5,530 

Aug., 

1917 

2,400 

Durango,  Col., 

5,300 

May, 

1915 

1,800 

Hickory,  N.  C, 

5,200 

May, 

1915 

1,500 

Big  Rapids,  Mich.,    . 

5,100 

April, 

1914 

1,400 

Mangum,  TexaSf 

4,770 

Nov., 

1914 

1,800 

Cynthiana,  Ky., 

4,580 

Dec, 

1915 

900 

Thomas ville,  N.  C, 

4,590 

May, 

1915 

1,200 

Crystal  Falls,  Mich., 

4,340 

May, 

1918 

2.400 

Anoka,  Minn., 

4,300 

April, 

1914 

1,200 

Morganton,  N.  C,    . 

4,240 

May, 

1913 

1,500 

Montrose,  Col., 

3,825 

Feb., 

1914 

1,800 

Beaufort,  S.  C, 

3,710 

May, 

1915 

1,800 

Otsego,  Mich., 

3,180 

May, 

1918 

1,800 

CoUinsville,  Okla.,     . 

2,500 

Feb., 

1914 

1,800 

Lubbock,  Texas, 

2,180 

May, 

1918 

- 

Westerville,  Ohio, 

2,140 

Jan., 

1916 

1,800 

Morris,  Minn., 

2,080 

Jan., 

1914 

1,800 

Madill,  Okla.,  . 

1,760 

- 

1917 

1,800 

SheriU,  N.  Y., 

1,500 

May, 

1916 

- 

Birmingham,  Mich., 

1,395 

May, 

1918 

2,000 

South  Charleston,  Ohio, 

1,325 

Jan., 

1918 

1,400 

Royal  Oak,  Mich.,    . 

1,200 

May, 

1918 

516 


II.    Cities  with  Modified  City  Manager  Plan.     Old  Form  of  Gov- 
ernment   RETAINED.      CiTY    MANAGER    USUALLY    PROVIDED    FOR    BY 

Ordinance   of   City  Council   or  by  Amendment  of  Existing 
Charter. 


City. 

Population 

In  Effect. 

Salary  of 

in  1918. 

Manager. 

Altoona,  Pa.,    ..... 

58,659 

Jan., 

1918 

$8,000 

San  Diego,  Cal., 

53,330 

May, 

1915 

6,000 

Bethlehem,  Pa., 

14,142 

May, 

1918 

- 

Staunton,  Va., 

11,654 

Jan., 

1918 

1,800 

Glendale,  Cal., 

11,500 

May, 

1915 

2,400 

Johnson  City,  Tenn., 

10,925 

July, 

1909 

1,500 

Brown  wood,  Texas,  . 

10,500 

- 

1917 

2,400 

Norwood,  Mass., 

9,605 

Jan., 

1915 

3,000 

Sewickley  and  Edgeworth, 

Pa., 

9,500 

July, 

1918 

3,600 

Charlottesville,  Va., 

8,000 

Aug., 

1913 

2,000 

San  Rafael,  Cal., 

7,650 

Aug., 

1915 

- 

Winchester,  Va., 

7,140 

May, 

1916 

2,000 

Roswell,  N.  Mex.,     . 

7,070 

May, 

1914 

1,800 

Fredericksburg,  Va., 

6,120 

Sept., 

1912 

4,000 

Towanda,  Pa., 

5,610 

Feb., 

1918 

1,200 

Tarboro,  N.  C, 

5,100 

April, 

1915 

1,500 

Anchorage,  Alaska,  . 

4.800 

July, 

1916 

3,300 

Grove  City,  Pa., 

4,240 

April, 

1916 

- 

Brigham  City,  Utah, 

4,240 

Jan., 

1918 

2,100 

Clarinda,  Iowa, 

4,570 

April, 

1913 

2,000 

Mt.  Pleasant,  Iowa, 

4,170 

April, 

1916 

1,530 

Teaque,  Texas, 

3,760 

Jan., 

1915 

1,700 

Iowa  Falls,  Iowa, 

3,790 

April, 

1914 

1,500 

Farmville,  Va., 

3,710 

Sept., 

1915 

1,200 

Winnetka,  111., 

3,610 

Jan>, 

1915 

3,000 

Pipestone,  Minn., 

3,010 

May, 

1917 

1,700 

Morehead  City,  N.  C, 

2,650 

June, 

1917 

1,500 

Bentonville,  Ark., 

2,650 

Sept., 

1915 

- 

Eaton  Rapids,  Mich., 

2,400 

April, 

1913 

1,500 

Weatherford,  Okla., 

2,400 

- 

- 

- 

Glencoe,  111.,     . 

2,130 

Jan., 

1914 

2,500 

Carrington,  N.  D.,    . 

1,875 

May, 

1917 

1,200 

Huntington  Beach,  Cal., 

1,460 

July, 

1916 

2,400 

Clark,  S.  D.,     . 

1,355 

May, 

1912 

960 

Glasgow,  Mont., 

1,300 

July, 

1916 

2,100 

Grosse  Pte.  Shores,  Mich., 

1,200 

June, 

1916 

1,800 

Largo,  Fla., 

500 

June, 

1913 

900 

Summary. 


Cities  with  complete  city-manager  plan, 
Cities  with  modified  city-manager  plan. 

Total 


82 
38 

120 


Note.  —  For  this  table  the  Commission  is  indebted  to  Harrison  G.  Otis,  Esq., 
City  Manager  of  Auburn,  Maine,  Secretary  of  the  City-Managers'  Association. 


517 


BIBLIOGRAPHY. 

General  References. 

American  Academy  of  Political  and  Social  Science.  "Commission  Gov- 
ernment and  the  City  Manager  Plan."    Annals.     Philadelphia,  1914. 

"The  City  Manager  Plan  in  Forty-five  Cities."  The  American  City, 
XII,  499-507  (June,  1915). 

Ashtabula,  Ohio,  Chamber  of  Commerce.  The  Ashtabula  Plan  of  Munic- 
ipal Government.  The  commission-manager  form  with  proportional 
representation.    Ashtabula,  n.d. 

Dayton,  Ohio,  Bureau  of  Municipal  Research.  A  Charter  Primer.  By 
L.  D.  Upson.    Dayton,  1914. 

Fitzpatrick,  E.  A.  Expert  City  Government.  (National  Municipal 
League  Series.)     New  York,  1918. 

Hatton,  A.  R.  "The  Ashtabula  Plan  —  the  Latest  Step  in  Municipal 
Organization."  National  Municipal  Review,  V,  56-65  (January, 
1916). 

Mabie,  E.  C.  Selected  Articles  on  the  City  Manager  Plan  of  Govern- 
ment.   (Debaters' Handbook  Series).    New  York,  1918. 

National  Mimicipal  League.  Committee  on  Municipal  Program.  A 
Model  City  Charter  and  Municipal  Home  Rule,  as  prepared  by  the 
Committee  on  Municipal  Program  of  the  National  Municipal  League. 
Philadelphia,  1916. 

Otis,  H.  G.  "Commission-Manager  Government  for  American  Cities." 
The  Accountant,  Portland,  Me.,  September,  1918. 

Quire,  Joseph  H.  City  Manager  Plan.  Bulletin,  University  Extension 
Division,  University  of  California,  I,  No.  18  (June,  1916). 

Short  Ballot  Organization.  The  City  Manager  Plan  of  Municipal  Gov- 
ernment. New  York,  1913.  (Reprinted  from  A  Loose  Leaf  Digest  of 
Short  Ballot  Charters,  edited  by  C.  A.  Beard.    New  York,  1911.) 

Touhnin,  H.  A.,  Jr.  The  City  Manager.  New  York,  1915.  310  pp. 
(National  Municipal  League  Series.) 

Walpole,  Mass.  Report  of  the  Town  Planning  Committee  on  Town  Gov- 
ernment with  Charter  for  the  Town  of  Walpole.  Walpole,  Mass., 
1917. 

Practical  Operation  of  the  City-Manager  Plan. 

Brooks,  Robert  C.  Commission  Manager  Government  in  San  Jos^,  Cal. 
National  Municipal  Review,  VI,  238-241  (March,  1917). 

Childs,  R.  S.  How  the  Commission-Manager  Plan  is  Getting  Along. 
National  Municipal  Review,  IV,  371-382  (July,  1915);  VI,  69-73. 

City  Managers'  Association.  Proceedings  of  the  First  Annual  Conven- 
tion, Springfield,  Ohio,  December,  1914.    Springfield,  1915. 

Proceedings  of  the  Second  Annual  Meeting,  Dayton,  Ohio,  Novem- 
ber, 1915.    0.  E.  Carr,  Secretary,  Niagara  Falls,  N.  Y.,  n.d. 


518 

City  Managers'  Association.  Proceedings  of  the  Third  Annual  Conven- 
tion, Springfield,  Mass.,  November,  1916.  H.  G.  Otis,  Secretary, 
Auburn,  Me. 

Fourth  Yearbook  (Fourth  Convention,  Detroit,  Mich.,  1917).    H.  G. 

Otis,  Secretary,  Auburn,  Me. 

Dayton,  Ohio.  The  City  Commission.  Annual  Report  of  the  City  of 
Dayton  for  the  year  1915.  Dayton,  1916.  (Complete  account  of 
actual  workings  in  Dayton.) 

Bureau  of  Municipal  Research.    One  Year  of  City  Management  in 

Dayton,  Ohio.    By  L.  D.  Upson.    Dayton,  1915. 

Short  Ballot  Organization.  Tangible  Results  at  Dayton  under  the  Com- 
mission-Manager Plan.    Pamphlet,  New  York,  n.d. 

Waite,  H.  M.  The  City  Manager  Form  of  Municipal  Government.  Engi- 
neering News,  LXXI,  101-102  (Jan.  8,  1914). 

The  Commission  Manager  Plan.    National  Municipal  Review,  IV, 

40-49  (January,  1915). 


Chartees  of  Some  Representative  City-Manager  Cities. 

Beard,  C.  A.,  ed.  A  Loose  Leaf  Digest  of  Short  Ballot  Charters.  The 
Short  Ballot  Organization,  383  Fourth  Avenue,  New  York.  New 
York,  1911-15.     (Contains  summary  of  city-manager  charters.) 

Ashtabula,  Ohio.  Charter  for  the  City  of  Ashtabula,  Ohio.  Prepared  and 
submitted  by  the  Charter  Commission.  Adopted  Nov.  3,  1914.  Ash- 
tabula, 1914.  Amended  August,  1915,  so  as  to  provide  for  propor- 
tional representation. 

Dayton,  Ohio.  Charter  for  the  City  of  Dayton.  Prepared  and  proposed 
by  the  Charter  Commission.  Reprinted  for  the  Bureau  of  Municipal 
Research,  Dayton.    Dayton,  1913. 

Kalamazoo,  Mich.    Charter  of  the  City  of  Kalamazoo.    1918. 

Norfolk,  Va.    Charter  of  the  City  of  Norfolk.    1918. 

Norwood,  Mass.  An  Act  to  change  the  time  of  holding  the  annual  meet- 
ing of  the  town  of  Norwood,  to  enlarge  the  powers  and  duties  of  the 
selectmen,  to  abolish  certain  offices,  and  to  provide  for  the  admin- 
istration of  town  affairs.  (Reprint  of  special  act  providing  for  town- 
manager  plan.) 

Springfield,  Ohio.    Charter  of  the  City  of  Springfield.    1918. 

Charter  Laws  Providing  for  City-Manager  Plan. 

A.     Optional  Charter  Laws. 

Massachusetts.    General  Acts  of  Massachusetts,  1915,  Chap.  267,  Part  V, 

Plan  D,  pp.  312-315. 
New  York.    Laws  of  New  York,  1914,  Vol.  Ill,  Chap.  444,  Art.  V,  pp. 
1900-1901. 


519 

North  Carolina.  Axi  Act  to  provide  for  the  organization  and  government 
of  cities,  towns,  and  incorporated  villages.  Approved  March  5,  1917, 
Part  V,  Plan  D. 

Ohio.    Laws  of  Ohio,  1913,  771-773. 

Virginia.    Acts  of  Assembly,  1914,  Chap.  94,  pp.  170-171. 

B.     General  City-Manager  Laws. 

Iowa.  Supplemental  Supplement  to  the  Code  of  Iowa,  1915,  Chap.  14-D, 
pp.  86-95.    (Compiled  by  W.  G.  Whitney,  Des  Moines,  1915.) 

Montana.  House  Bill  No.  135,  enacted  by  Montana  Legislature,  session 
of  1917. 

The  State  Legislatures  of  Idaho  and  Kansas  have  also  enacted  general 
city-manager  laws  during  the  present  session  (1917).  For  brief  sum- 
mary of  provisions  see  National  Municipal  Review,  VI,  416-417  (May, 
1917). 


BULLETIN  No.   14 


CONSTITUTIONAL   RESTRICTIONS    ON 
MUNICIPAL    INDEBTEDNESS 


CONTENTS. 


PAGE 

I.   Origin  and  Development, 525 

II.    Prohibitions  against  the  Lending  of  Credit  to  Private  Enterprise,  526 

III.  Limitations  as  to  Total  Amount  of  Debt  that  may  be  incurred 

by  Cities  and  Towns, 527 

Methods  of  fixing  Debt  Limits, 527 

Referendum  required  on  Bond  Issues, 529 

Provisions  for  exceeding  Debt  Limit  by  Referendum,       .        .  530 

Amounts  to  be  exempted  in  computing  Debt  Limit,         .        .  531 

Temporary  Loans, 531 

Debts  incurred  for  Waterworks,  Lighting  Plants  and  other 

Public  Utilities, 531 

South  Carolina,  Arkansas,  Oklahoma  and  New  Mexico,     .  532 

Michigan  and  Ohio, 532 

Pennsylvania,  New  York  and  Virginia,       ....  533 
The  Evasion  of  Debt  Limits  by  Creation  of  Overlapping 

Municipal  Corporations, 534 

IV.  Provisions  as  to  Term  of  Loans  and  Methods  of  Payment,         .  535 

Term  of  Loans, 536 

Provisions  as  to  Payment  of  Interest  and  Principal,         .        .   536 

Proceeds  of  Loans  to  be  applied  to  Specified  Purposes,  .       .  537 

V.    Restrictions  upon  Municipal  Indebtedness  in  Massachusetts,     .  537 

Provisions  of  Act  of  1875, 538 

Actual  Workings  of  Municipal  Indebtedness  Act  of  1875,         .  538 

Municipal  Finance  Act  of  1913, 541 

Limit  of  Amount  of  Debt, 541 

Exemptions  —  Temporary  Loans  and  Public  Utility  Bonds,  541 

Purpose  and  Term  of  Loans, 542 

Methods  of  Enforcement, 543 

Actual  Workings  of  Act  of  1913, 543 

VI.   Conclusion, 544 

Appendix  —  Provisions  of  the  Municipal  Finance  Act  of  1913  in 

Regard  to  Municipal  Indebtedness, 545 

Bibliography, 548 


CONSTITUTIONAL  RESTRICTIONS  ON 
MUNICIPAL  INDEBTEDNESS. 


I.    ORIGIN  AND  DEVELOPMENT. 

The  regulation  of  municipal  indebtedness  received  little  atten- 
tion in  the  United  States  until  the  early  seventies,  when  local 
debts  commenced  to  pile  up  at  a  rapid  rate.  The  total  debt  of 
Massachusetts  cities  and  towns,  for  example,  "increased  from 
$34,826,860  in  1870  to  S80,427,745  in  1874  —  a  matter  of  134 
per  cent,  while  the  valuation  .  .  .  increased  but  29  per  cent 
and  taxes  but  31  per  cent.  .  .  .  Cases  were  not  infrequent  when 
bonds  were  issued  by  districts  in  excess  of  the  total  assessed 
value  of  all  the  taxable  property  therein.  The  debt  of  one 
hundred  and  thirty  of  the  largest  cities  in  the  United  States  in 
1876  showed  an  increase  of  200  per  cent  in  ten  years,  while  the 
annual  taxation  increase  was  83  per  cent,  and  the  valuation  of 
property  75  per  cent  in  the  same  period."^ 

A  large  part  of  this  heavy  indebtedness  was  the  result  of 
investments  by  cities  and  towns  in  private  enterprises  —  es- 
pecially canals,  railways  and  turnpikes.  When  a  number  of  the 
enterprises  failed  and  the  burden  was  felt  by  the  taxpayers,  a 
reaction  occurred.  As  early  as  1851  the  Constitution  of  Ohio 
specifically  prohibited  such  subsidies,  while  Oregon  and  Penn- 
sylvania in  1857  adopted  constitutional  amendments  prohibiting 
municipalities  from  lending  their  credit  to  or  becoming  stock- 
holders in  private  corporations. ^  The  constitutions  of  Mary- 
land, Mississippi,  Missouri,  Nevada  and  North  Carolina  also 
imposed  partial  limitations  of  a  similar  nature  during  the  period 
from  1865  to  1868.^  These  earlier  restrictions,  however,  were 
somewhat  indefinite  as  to  their  applicability  and  it  was  not  until 

•  Horace  Secrist,  An  Economic  Analysis  of  the  Constitutional  Restrictions  upon  Public  Indebted- 
ness in  the  United  Slates.    Bulletin  of  the  University  of  Wisconsin,  No.  637.    Madison,  1914,  p.  56. 

»  Constitution  of  Ohio,  1851,  Art.  VIII,  Sect.  6;  Constitution  of  Oregon,  1867,  Art.  XI,  Sect.  9; 
Constitution  of  Pennsylvania,  1838,  Amendments,  Art.  XI,  Sect.  7,  adopted  in  1857. 

'  Secrist,  p.  59. 


526 

after  the  crisis  of  the  seventies  that  the  movement  to  curtail 
municipal  debts  became  of  much  importance. 

After  1870  the  agitation  for  constitutional  restrictions  on  the 
power  of  municipahties  to  incur  indebtedness  was  given  a  great 
impetus,  so  that  by  1880  the  constitutions  of  eighteen  States 
contained  prohibitions  against  municipahties  lending  aid  to  or 
becoming  stockholders  in  private  corporations.  A  short  while 
later  provisions  were  inserted  in  constitutions  limiting  the  total 
amount  of  debt  which  cities  might  incur  for  any  purpose  what- 
soever, the  length  of  bonds,  methods  of  payment  and  so  on. 
At  the  present  time,  therefore,  constitutional  restrictions  on 
municipal  indebtedness  are  very  general,  there  being  only  a 
few  State  constitutions  which  do  not  either  contain  prohibitions 
against  the  lending  of  credit  to  private  corporations  or  include 
limitations  as  to  the  maximum  amount  of  debt  that  may  be 
incurred  by  a  municipality  or  both.  Even  in  those  States  where 
the  constitution  is  silent  on  the  subject,  it  is  oftentimes  the 
practice  of  the  Legislature  to  limit  the  amount  and  purpose  of 
municipal  indebtedness  by  statute.  This  is  the  method  of 
regulation  in  Massachusetts  and  in  such  other  States  as  Ohio, 
Michigan,  Kansas,  Rhode  Island,  and  so  on.  In  the  following 
analysis,  however,  consideration  is  given  only  to  constitutional 
provisions,  with  the  exception  of  that  part  of  the  report  dealing 
with  the  situation  in  Massachusetts. 

The  various  constitutional  restrictions  on  municipal  indebted- 
ness fall  roughly  into  three  general  classes:  (1)  prohibitions 
against  municipalities  lending  their  credit  to  private  enterprises; 
(2)  limitations  as  to  the  total  amount  of  debt  that  may  be  in- 
curred by  municipalities,  and  (3)  regulations  as  to  the  length  of 
bonds,  methods  of  payment,  etc. 

II.    PROHIBITIONS    AGAINST    THE    LENDING    OF    CREDIT 
TO  PRIVATE  ENTERPRISE. 

The  most  common  constitutional  restrictions  upon  municipal 
indebtedness  are  those  prohibiting  municipalities  from  lending 
their  credit  to  private  corporations.  There  are  thirty  States 
which  prohibit  such  subsidies  absolutely  to  all  corporations: 
namely,  Alabama,  Arkansas,  Arizona,  California,  Colorado, 
Delaware,  Florida,  Georgia,  Idaho,  Illinois,  Kentucky,  Louisiana, 


527 

Michigan,  Mississippi,  Missouri,  Montana,  New  Jersey,  New- 
York,  New  Mexico,  North  Dakota,  Ohio,  Oklahoma,  Oregon, 
Pennsylvania,  South  Dakota,  Texas,  Utah,  Virginia,  Washing- 
ton, Wyoming.  In  the  three  States  of  Nebraska,  North 
Carolina  and  Tennessee,  municipalities  are  forbidden  to  pledge 
their  credit  to  private  corporations  unless  approved  by  the 
voters.  In  a  few  other  States,  of  which  Connecticut,  Mary- 
land, Minnesota,  Nebraska  and  Nevada  are  examples,  prohi- 
bitions of  this  nature  are  only  partial  in  their  application,  as  in 
Connecticut,  for  instance,  where  the  only  corporations  to  which  a 
city  or  town  may  not  lend  its  aid  are  railroads.  Thus  it  is  seen 
that  the  practice  of  forbidding  cities  and  towns  from  incurring 
obligations  in  behalf  of  private  corporations  is  almost  universal, 
the  only  States  without  such  constitutional  limitations  being 
Massachusetts,  Indiana,  Iowa,  Kansas,  Maine,  Rhode  Island, 
South  Carolina,  Vermont  and  Wisconsin. 

III.    LIIVIITATIONS  AS  TO  TOTAL  AMOUNT  OF  DEBT  THAT 
IVIAY  BE  INCURRED  BY  CITIES  AND  TOWNS. 

To-day  the  most  important  constitutional  restrictions  on  mu- 
nicipal indebtedness  are  those  which  limit  the  total  amount  of 
debt  that  may  be  incurred  by  a  city,  town  or  other  municipal 
corporation.  There  are  twenty-eight  States  which  impose  such 
limitations,  namely:  Alabama,  Arizona,  Arkansas,  California, 
Colorado,  Georgia,  Idaho,  Illinois,  Indiana,  Iowa,  Kentucky, 
Louisiana,  Maine,  Missouri,  Montana,  New  Mexico,  New  York, 
North  Dakota,  Oklahoma,  Pennsylvania,  South  Carolina,  South 
Dakota,  Utah,  Virginia,  Washington,  West  Virginia,  Wisconsin 
and  Wyoming.^ 

Methods  of  fixing  Debt  Limits. 
The  most  common  method  of  fixing  municipal  debt  limits  in 
the  various  States  is  to  provide  that  the  total  amount  of  in- 
debtedness shall  not  exceed  a  certain  percentage  of  the  assessed 

>  The  constitutional  references  are  as  follows:  Alabama,  XII,  225,  226;  Arizona,  IX,  8;  Arkan- 
sas, XVI,  1;  CaHfornia,  XI,  18;  Colorado,  XI,  8;  Georgia,  VII,  Sect.  VII,  1;  Idaho,  VIII,  3; 
Illinois,  IX,  12;  IV,  34;  Indiana,  XIII,  1;  Iowa,  XI,  3;  Kentucky,  157,  158;  Louisiana,  Art.  281, 
Sect.  1;  Maine,  Amendments  I,  XIII;  Missouri,  IX,  19;  X,  12;  Montana,  XIII,  6;  New  Mexico. 
IX,  12,  13,  15;  New  York,  Art.  8,  Sect.  10;  North  Dakota,  XII,  183;  Oklahoma,  X,  26,  27. 
Schedule  25;  Pennsylvania,  IX,  8,  15;  South  Carolina,  VIII,  7;  X,  5;  South  Dakota,  XIII,  4; 
Utah,  XIV,  3,  4;  Virginia,  VIII,  127;  Washington,  VIII,  6;  West  Virginia,  X,  8;  Wisconsin,  XI, 
3;  Wyoming,  XVI,  3,  5. 


528 


valuation  of  all  taxable  property  within  the  city  or  town.  The 
amount  of  debt  which  may  be  incurred  under  this  method  varies 
from  one  and  one-half  per  cent  of  the  assessed  valuation  in 
Washington^  to  ten  per  cent  in  Louisiana,  the  most  common 
provision  being  five  per  cent. 

The  States  of  New  York,  Virginia,  California  and  Idaho, 
however,  use  a  somewhat  different  basis  from  that  of  the  other 
commonwealths.  In  New  York  and  Virginia  the  limit  beyond 
which  debt  may  not  be  created  is  fixed  at  ten  and  eighteen 
per  cent  respectively  of  the  assessed  valuation  of  real  estate 
alone ;^  while  in  California  and  Idaho  the  aggregate  amount  of 
debt  of  a  city  or  town  may  not  exceed  the  income  and  revenue 
of  the  municipality  for  the  current  year.^  Following  is  a  table 
showing  the  basis  of  municipal  debt  limits  in  the  several 
States: — 


State. 


Debt  Limit. 


Alabama, 

Arizona,    . 

Arkansas, 

California, 

Colorado, 

Georgia, 

Idaho, 

Illinois, 

Indiana, 

Iowa, 

Kentucky, 

Louisiana, 

Maine, 

Missouri,  . 

Montana, 

New  Mexico, 

New  York, 

North  Dakota, 


5  per  cent  of  assessed  valuation  of  property. 

4  per  cent  of  assessed  valuation  of  property. 
7  per  cent  of  assessed  valuation  of  property. 
Not  to  exceed  annual  revenue  and  income. 
3  per  cent  of  assessed  valuation  of  property. 
7  per  cent  of  assessed  valuation  of  property. 
Not  to  exceed  annual  revenue  and  income. 

5  per  cent  of  assessed  valuation  of  property.  * 
2  per  cent  of  assessed  valuation  of  property. 
5  per  cent  of  assessed  valuation  of  property. 

2  to  10  per  cent  of  assessed  valuation  of  property. ' 
10  per  cent  of  assessed  valuation  of  pioperty. 

5  to  7i  per  cent  of  assessed  valuation  of  property. ' 
5  per  cent  of  assessed  valuation  of  property. ' 

3  per  cent  of  assessed  valuation  of  property. 

4  per  cent  of  assessed  valuation  of  property. 

10  per  cent  of  assessed  valuation  of  real  estate  alone. 

5  per  cent  of  assessed  valuation  of  property. 


1  Debt  may  be  increased,  however,  from  one  and  one-half  per  cent  to  five  per  cent  of  assessed 
valuation  by  referendum. 

'  The  Virginia  Constitution  provides,  however,  that  the  constitutional  limit  of  eighteen  per 
cent  is  not  to  apply  to  cities  whose  charters  existing  at  the  time  of  the  adoption  of  the  Constitution 
authorized  a  larger  percentage  of  indebtedness. 

'  This  limit  may  be  exceeded,  however,  in  California  and  Idaho  upon  approval  of  two-thirds 
of  the  qualified  electors. 

*  Actual  debt  limit  is  very  low  in  Illinois,  since  property  is  assessed  at  only  one-third  of  its  true 
value. 

'  Cities  over  15,000,  10  per  cent;  cities  of  third  and  fourth  class,  five  per  cent;  other  cities, 
three  per  cent.    Other  municipalities,  two  per  cent. 

•  Cities  and  towns  of  less  than  40,000,  five  per  cent;  cities  over  40,000,  seven  and  one-half  per 
cent. 

'  Does  not  apply  to  cities  over  300,000. 


529 


State. 

Debt  Limit. 

Oklahoma, 

Pennsylvania, 
South  Carolina, 
South  Dakota, 
Utah, 
Virginia,    . 
Washington,     . 
West  Virginia, 
Wisconsin, 
Wyoming, 

5  per  cent  of  assessed  valuation  of  property. 

7  per  cent  of  assessed  valuation  of  property. 

8  per  cent  of  assessed  valuation  of  property. 
5  per  cent  of  assessed  valuation  of  property. 

4  per  cent  of  assessed  valuation  of  property. 

18  per  cent  of  assessed  valuation  of  real  estate  alone.  * 
U  to  5  per  cent  of  assessed  valuation  of  property.  * 

5  per  cent  of  assessed  valuation  of  property. 
5  per  cent  of  assessed  valuation  of  property. 
2  per  cent  of  assessed  valuation  of  property. 

Referendum  required  on  Bond  Issues. 

Some  of  the  States  not  only  fix  debt  limits  in  their  constitu- 
tions but  provide  also  that  the  approval  of  the  voters  must  be 
received  before  bonds  of  any  considerable  amount  may  be 
issued  within  the  limits  so  established.  The  most  common  pro- 
vision in  this  respect  is  that  found  in  the  constitutions  of 
California,  Idaho,  Kentucky,  Missouri,^  Oklahoma  and  Utah, 
which  require  a  referendum  on  all  debts  contracted  by  a  city 
within  the  constitutional  debt  limit  if  they  exceed  in  any  year 
the  income  and  revenue  of  the  municipality  for  that  year. 
Under  the  Pennsylvania  Constitution  any  new  debt  which 
exceeds  two  per  cent  of  the  assessed  valuation  must  be  sub- 
mitted to  the  voters,  while  in  Arkansas,  South  Carolina,  West 
Virginia,  Arizona,  Colorado,  Louisiana,^  and  New  INIexico  the 
creation  of  any  debt  whatsoever  must  be  referred  to  the  voters 
regardless  of  its  amount.^  In  the  four  States  last  mentioned  — 
Arizona,  Colorado,  Louisiana  and  New  Mexico  —  taxpayers 
alone  have  a  right  to  vote  on  bond  issues,  while  in  the  other 
States  the  matter  is  presented  to  the  regular  voters.  The  vote 
necessary  to  legalize  a  loan  varies  from  a  mere  majority  to  two- 
thirds  of  the  qualified  electors. 

In  these  States,  therefore,  there  is  a  double  check  upon 
municipal   indebtedness,    first   by   fixing   a   maximum   beyond 

1  Does  not  apply  to  cities  whose  charters  at  time  of  the  adoption  of  the  Constitution  permitted 
larger  indebtedness  than  eighteen  per  cent. 

2  Debt  limit  in  Washington,  one  and  one-half  per  cent,  unless  approved  by  referendum,- in 
which  case  it  may  be  increased  to  five  per  cent. 

'  Does  not  apply  to  cities  over  300,000. 
*  Does  not  apply  to  New  Orleans. 

»  In  addition  to  the  States  above  mentioned  the  Illinois  Constitution  requires  a  referendum 
on  bonds  issued  by  the  city  of  Chicago. 


530 

which  debt  may  not  be  incurred,  and  secondly  by  requiring 
that  debts  created  within  this  Hmit  must  be  referred  either  to 
the  regular  voters  or  to  those  who  pay  a  property  tax. 

Provisions  for  exceeding  Debt  Limit  by  Referendum. 

In  most  of  the  States  whose  constitutions  contain  municipal 
debt  limits,  the  aggregate  amount  of  indebtedness  as  fixed  in 
the  constitution  may  not  be  exceeded  by  a  city  or  town  under 
any  circumstances,  and  all  debts  beyond  the  limit  are  void. 
Exceptions  to  this  rule,  however,  are  found  in  Arizona,  Cali- 
fornia, Idaho  and  North  Dakota,  where  borrowing  beyond  the 
limit  may  be  authorized  by  referendum.  Under  the  Arizona 
Constitution  any  city  or  town  may  exceed  the  four  per  cent 
debt  limit  to  an  indefinite  amount  provided  a  majority  of  the 
taxpayers  vote  in  favor  of  the  proposition,  while  in  California 
and  Idaho  a  similar  privilege  is  permitted  provided  the  consent 
of  two-thirds  of  the  qualified  voters  is  obtained.  Under  the 
Constitution  of  North  Dakota  any  incorporated  city  may,  by 
a  two-thirds  vote  of  the  electors,  increase  the  debt  limit  from 
five  per  cent  of  the  assessed  valuation  of  property  to  eight 
per  cent  of  such  valuation,  while  in  Washington  the  maximum 
amount  of  debt  may  be  increased  from  one  and  one-half  per 
cent  to  five  per  cent  of  the  assessed  valuation  by  referendum. 

Provisions  are  also  found  in  a  few  of  the  State  constitutions 
permitting  the  debt  limit  to  be  increased  to  a  limited  degree  for 
the  purchase  or  construction  of  certain  specified  public  utilities. 
In  Utah,  for  example,  cities  may  be  authorized  to  incur  a  larger 
indebtedness  than  that  permitted  in  the  Constitution  for  the 
purpose  of  supplying  water,  light  and  sewers,  provided  that  the 
consent  of  a  majority  of  the  taxpayers  is  obtained.  The 
amount  of  additional  borrowing  which  may  be  permitted  for 
these  purposes  in  this  State  is  limited  to  four  per  cent  of  the. 
assessed  valuation  of  property  in  cities  of  the  first  and  second 
class,  and  to  eight  per  cent  in  cities  of  the  third  class.  South 
Dakota  also  permits  cities  to  borrow  beyond  the  debt  limit  for 
water  works,  lighting  plants  and  street  railways;  the  amount 
of  additional  borrowing  which  may  be  incurred  for  waterworks 
is  limited  to  ten  per  cent  of  the  assessed  valuation  of  taxable 
property,  and  that  for  lighting  plants  and  street  railways  to 
eight  per  cent  of  such  valuation.     In  Alabama,  North  Dakota 


531 

and  Missouri  additional  debts  may  be  incurred  beyond  the  debt 
limit  for  water  and  sewerage  systems,  etc.,  to  an  amount  not 
exceeding  three,  four,  and  five  per  cent  respectively  of  the 
assessed  valuation. 

Amounts  to  be  exempted  in  computing  Debt  Limits. 

In  setting  limitations  upon  municipal  indebtedness  the  consti- 
tutions sometimes  provide  that  certain  forms  of  debts  shall  not 
be  included  within  the  reckoning,  such  as  temporary  loans  and 
debts  incurred  for  the  purchase,  construction  or  extension  of 
water  works  and  other  public  utilities. 

Temporary  Loans. 
Temporary  loans  which  are  made  in  anticipation  of  taxes  in 
order  to  bridge  over  the  period  from  one  tax  collection  to 
another  are  expressly  exempted  from  the  debt  limit  in  such 
States  as  New  York,  Maine  and  Virginia,  while  in  a  few  other 
States  the  constitutions  provide  that  a  limited  amount  of  such 
loans  may  be  so  exempted.  In  Alabama,  for  example,  tempo- 
rary loans  equal  in  amount  to  one-fourth  of  the  annual  revenue 
of  the  municipality  may  be  exempted;  under  the  Constitution 
of  Georgia  such  loans  may  be  excepted  to  the  amount  of  one- 
fifth  of  one  per  cent  of  the  assessed  valuation  of  property  in  the 
city  or  town;  while  in  Missouri  temporary  loans  not  exceeding 
seven-eighths  of  the  entire  annual  revenue  applicable  to  govern- 
mental purposes  may  be  disregarded  in  computing  the  debt 
limit  of  cities  over  200,000  in  population.  Even  in  those 
States  where  exemptions  are  not  specifically  provided  for,  the 
general  practice  is  to  omit  temporary  loans  from  the  debt  limit 
on  the  ground  that  such  obligations  are  not  a  part  of  the 
permanent  debt,  but  are  offset  by  taxes  to  be  collected  the 
following  year.^ 

Debts  incurred  for  Waterworks,  Light  Plants  and  Other  Public 

Utilities. 
One  of  the  most  recent  developments  in  constitutional  debt 
limits  has  been  the  tendency  to  exempt  certain  types  of  loans 
incurred  for  the  acquisition  or  equipment  of  waterworks,  light- 

1  Secrist,  99.     See  also  Report  of  the  Advisory  Commission  on  Taxation  and  Finance,  New  York 
City,  1908.  pp.  34-35. 


532 

ing  plants  and  other  public  utilities.  It  is  maintained  that 
loans  of  this  character  should  not  be  included  in  reckoning  the 
maximum  legal  indebtedness  of  a  city  because  the  interest  and 
principal  on  the  same  can  be  paid  out  of  the  income  derived 
from  the  plant,  thus  making  it  unnecessary  to  draw  upon  the 
general  tax  fund.  The  States  whose  constitutions  permit  public 
utility  loans  to  be  exempted  from  the  constitutional  debt  limit 
include  South  Carolina,  Arkansas,  Oklahoma,  New  Mexico, 
Pennsylvania,  New  York  and  Virginia.  The  Constitutions  of 
Michigan  and  Ohio  also  contain  provisions  permitting  public 
utility  bonds  to  be  omitted  from  such  statutory  debt  limits  as 
may  be  fixed  by  the  legislature.  The  following  is  an  analysis  of 
the  exemptions  for  such  purposes  in  the  various  States  above 
mentioned :  — 

South  Carolina,  Arkansas,  Oklahoma  and  Neio  Mexico.  — 
Under  the  South  Carolina  Constitution  debts  incurred  for  the 
purchase,  establishment  and  maintenance  of  waterworks,  sewer- 
age systems  and  lighting  plants  in  certain  specified  cities  are 
not  to  be  included  in  determining  the  maximum  amount  of  in- 
debtedness of  the  city  in  question.^  All  such  debts,  however, 
must  be  approved  by  a  majority  of  the  voters.  The  Constitu- 
tions of  Arkansas,^  Oklahoma,^  and  New  Mexico  "*  contain  similar 
provisions  applicable  to  all  cities  in  the  State.  In  Arkansas  it  is 
expressly  provided  that  a  mortgage  or  lien  on  the  plant  must  be 
given  as  additional  security  for  any  debt  beyond  the  constitu- 
tional limit. 

Michigan  and  Ohio.  —  The  Constitutions  of  Michigan  and 
Ohio  contain  an  identical  provision  authorizing  any  municipality 
which  acquires  or  constructs  a  public  utility  to  "issue  mortgage 
bonds  therefor  beyond  the  general  limit  of  bonded  indebtedness 
prescribed  by  law;  provided  that  such  mortgage  bonds  issued 
beyond  the  general  limit  of  bonded  indebtedness  prescribed  by 
law  shall  not  impose  auy  liability  upon  such  municipality  but 
shall  be  secured  only  upon  the  property  and  revenues  of  such 
public  utility,  including  a  franchise  stating  the  terms  upon 
which,  in  case  of  foreclosure,  the  purchaser  may  operate  the 

1  Constitution  of  South  Carolina,  VIII,  7. 
'  Constitution  of  Arkansas,  XVI,  1. 
'  Constitution  of  Oklahoma,  X,  27. 
,         •  Constitution  of  New  Mexico,  IX,  13. 


533 

same,  which  franchise  shall  in  no  case  extend  for  a  longer  period 
than  twenty  years  from  the  date  of  the  sale  of  such  utility  and 
franchise  on  foreclosure."^ 

Pennsylvania,  New  York  and  Virginia.  —  As  already  ex- 
plained above,  the  principle  underlying  the  exemption  of  public 
utility  loans  from  the  debt  limit  is  that  they  represent  the  in- 
debtedness of  a  productive  plant,  the  income  of  which  will  in 
time  amortize  the  bonds.  In  most  of  the  States,  however,  no 
attempt  is  made  to  differentiate  between  utilities  which  have 
an  actual  income  and  those  that  do  not.  In  the  Constitutions 
of  the  tliree  States  of  Pennsylvania,  New  York  and  Virginia,  on 
the  other  hand,  it  is  expressly  required  that  the  public  utility 
in  question  must  produce  an  actual  net  revenue  before  its  in- 
debtedness may  be  considered  as  outside  of  the  debt  limit. 

The  Constitution  of  Pennsylvania  as  amended  in  1913  pro- 
vides as  follows  in  regard  to  such  deductions:  — 

No  obligations  which  have  been  heretofore  issued,  or  which  may  here- 
after be  issued,  by  any  county  or  municipahty,  other  than  Philadelphia,  to 
provide  for  the  construction  or  acquisition  of  waterworks,  subways,  under- 
ground railways  or  street  railways,  or  the  appurtenances  thereof,  shall 
be  considered  as  a  debt  of  a  municipality  (within  the  meaning  of  the 
debt  limit)  ...  if  the  net  revenue  derived  from  said  property  for  a 
period  of  five  years,  either  before  or  after  the  acquisition  thereof,  or, 
where  the  same  is  constructed  by  the  county  or  municipality,  after  the 
completion  thereof,  shall  have  been  sufficient  to  pay  interest  and  sinking- 
fund  charges  during  said  period  upon  said  obligations,  or  if  the  said 
obHgations  shall  be  secured  by  liens  upon  the  respective  properties,  and 
shall  impose  no  municipal  liability.^ 

The  New  York  Constitution  also  was  amended  in  1909  so  as 
to  provide  a  more  liberal  borrowing  policy  for  the  city  of  New 
York,  which  had  practically  reached  its  debt  limit. ^  This 
amendment  authorizes  the  exemption  of  public  utility  loans  in 
the  city  of  New  York,  but  defines  exactly  the  circumstances 
under  which  such  deductions  shall  be  permitted.  The  provision 
is  as  follows :  — 

1  Constitution  of  Michigan,  Art.  VIII,  Sect.  24;   Conslilution  of  Ohio,  Art.  XVIII,  Sect.  12. 

2  Constitution  of  Pennsylvania,  Art.  IX,  Sect.  15. 

'  Report  of  Advisory  Commission  on  Taxation  and  Finance,  New  York  City.  "The  City  Debt 
in  Relation  to  the  Constitutional  Limit  of  Indebtedness,  containing  a  proposed  amendment  to 
Section  10  of  Article  VIII  of  the  State  Constitution."    New  York,  1908. 


534 

.  .  .  Any  debt  hereafter  incurred  by  the  city  of  New  York  for  a  public 
improvement  owned  or  to  be  owTied  by  the  city,  which  yields  to  the  city 
current  net  revenue,  after  making  any  necessary  allowance  for  repairs 
and  maintenance  for  which  the  city  is  liable,  in  excess  of  the  interest  on 
said  debt  and  of  the  annual  instalments  necessary  for  its  amortization 
may  be  excluded  in  ascertaining  the  power  of  said  city  to  become  other- 
wise indebted,  provided  that  a  sinking  fund  for  its  amortization  shall 
have  been  established  and  maintained  and  that  the  indebtedness  shall 
not  be  so  excluded  during  any  period  of  time  when  the  revenue  aforesaid 
shall  not  be  sufficient  to  equal  the  said  interest  and  amortization  instal- 
ments, and  .  .  .  any  indebtedness  heretofore  incurred  by  the  city  of 
New  York  for  any  rapid  transit  or  dock  investment  may  be  so  excluded 
proportionately  to  the  extent  to  which  the  current  net  revenue  received 
by  said  city  therefrom  shall  meet  the  interest  and  amortization  instal- 
ments thereof,  provided  that  any  increase  in  the  debt  incurring  power  of 
the  city  of  New  York  which  shall  result  from  the  exclusion  of  debts  here- 
tofore incurred  shall  be  available  only  for  the  acquisition  or  construction 
of  properties  to  be  used  for  rapid  transit  or  dock  purposes.  The  Legisla- 
ture shall  prescribe  the  method  by  which  and  the  terms  and  conditions 
under  which  the  amount  of  any  debt  to  be  so  excluded  shall  be  determined, 
and  no  such  debt  shall  be  excluded  except  in  accordance  with  the  deter- 
mination so  prescribed.  The  Legislature  may  in  its  discretion  confer 
appropriate  jurisdiction  on  the  appellate  division  of  the  supreme  court 
in  the  first  judicial  department  for  the  purpose  of  determining  the  amount 
of  any  debt  to  be  so  excluded.^ 

The  New  York  Constitutional  Convention  of  1915,  in  sub- 
mitting the  draft  of  a  new  constitution  to  the  voters,  did  not 
propose  any  material  change  in  the  above-mentioned  provisions 
except  to  require  that  all  bonds  be  issued  on  the  serial  plan.^ 

The  provisions  of  the  Virginia  Constitution  on  local  debt  are 
much  the  same  as  those  in  the  New  York  Constitution  quoted 
above  and  require  that  the  exemption  of  public  utility  obliga- 
tions from  the  debt  limit  shall  be  permitted  only  so  long  as  the 
plant  in  question  produces  sufficient  revenue  to  pay  the  cost  of 
operation  and  administration.^ 

The  Evasion  of  Debt  Limits  by  the  Creation  of  Over- 
lapping Municipal  Corporations. 
Notwithstanding  the  fact  that  debt  limits  have  been  definitely 
prescribed  in  the  various  State  constitutio;is,  cities  have  in  some 

1  Constitution  of  New  York,  Art.  VIII,  Sect.  10. 

2  Proposed  Constitution  of  New  York,  1915,  Art.  XI,  Sects.  11,  12. 

3  Constitution  of  Virginia,  Art.  VIII,  Sect.  127. 


535 

cases  found  it  possible  to  evade  such  restrictions  by  the  es- 
tabhshment  •  within  their  hmits  of  independent  districts  which 
also  have  the  right  to  levy  taxes,  borrow  money,  etc.  This  is 
the  device  which  has  been  resorted  to  in  the  city  of  Chicago, 
where  there  are  a  number  of  separate  local  governments  such 
as  the  city  corporation,  the  county,  school  district,  park  com- 
missions, sanitary  district,  and  so  on,  occupying  practically 
the  same  territory  and  each  with  the  power  to  borrow  inde- 
pendently up  to  five  per  cent  of  the  assessed  valuation  within 
its  boundaries. 

The  Constitutions  of  two  States  —  South  Carolina  and  Ne- 
braska —  forbid  an  undue  accumulation  of  debt  by  such  over- 
lapping of  political  jurisdictions.  The  South  Carolina  Constitu- 
tion, for  example,  which  places  an  eight  per  cent  limit  upon  the 
indebtedness  of  each  separate  municipality,  provides  that  when- 
ever there  are  two  or  more  municipal  corporations  extending 
over  the  same  territory  each  of  "such  political  divisions  or  mu- 
nicipal corporations  shall  so  exercise  its  power  to  increase  its 
debt  under  the  foregoing  eight  per  cent  limitation  that  the 
aggregate  debt  over  and  upon  any  territory  of  this  State  shall 
never  exceed  fifteen  per  cent  of  the  value  of  all  taxable  property 
in  such  territory."  ^  Nebraska  prohibits  any  county  with  all 
its  subdivisions  from  making  a  grant  in  aid  of  any  railroad  in 
excess  of  ten  per  cent  of  its  assessed  value  unless  it  receives  a 
two-thirds  popular  vote.^  These  are  the  only  two  States,  so  far 
as  can  be  determined,  whose  constitutions  prohibit  the  Legis- 
lature from  indefinitely  increasing  debt  by  the  creation  of  inde- 
pendent corporations  and  in  only  one  of  these  —  South  Carolina 
—  is  the  prohibition  of  general  applicability. 

IV.    PROVISIONS  AS  TO   TERM   OF  LOANS  AND   METHODS 

OF  PAYMENT. 

The  third  important  type  of  restrictions  on  municipal  in- 
debtedness comprises  those  regulating  the  term  of  loans,  the 
methods  of  paying  the  interest  and  principal  on  the  same, 
and  the  application  of  funds  derived  from  such  sources. 

1  Constitution  of  South  Carolina,  Art.  X,  Sect.  5. 
*  Constitution  of  Nebraska,  Art.  XII,  Sect.  2. 


536 


Term  of  Loans. 

The  Constitutions  of  thirteen  States  (Arkansas,  CaUfornia, 
Georgia,  Idaho,  Illinois,  Kentucky,  Louisiana,  Missouri,  New 
Mexico,  Oklahoma,  Pennsylvania,  West  Virginia  and  Wisconsin) 
prescribe  the  maximum  period  for  which  debts  may  run,  vary- 
ing from  fifteen  years  in  Colorado  to  fifty  years  in  New  Mexico 
and  seventy-five  years  for  certain  specified  cities  in  California. 
The  Constitutions  of  three  other  States  —  North  and  South 
Dakota  and  South  Carolina  —  require  that  debts  shall  be  paid 
"when  due"  without  specifying  the  period.  One  State  — 
Colorado  —  also  stipulates  that  bonds  shall  not  be  issued  for 
less  than  ten  years.  ^ 

Following  is  a  table  showing  the  maximum  term  of  loans  as 
provided  for  in  the  various  State  constitutions:  — 

Table  shoiving  Maxwium  Term  of  Loans. 


Fifteen  years :  — 

Thirty-four  years :  — 

Colorado. 

West  Virginia. 

Twenty  years :  — 

Thirty-five  years :  — 

Idaho. 

Arkansas. 

Illinois. 

Forty  years :  — 

Missouri. 

Kentucky. 

Wisconsin.  ^ 

Louisiana. 

Twenty-five  years :  — 

California.  ■• 

Oklahoma. 

Fifty  years :  — 

Thirty  years :  — 

New  Mexico. 

Pennsylvania.  ^ 

.  Seventy-five  years :  — 

Georgia. 

California.  ■• 

Provisions  as  to  Payment  of  Interest  and  Principal. 

A  number  of  the  State  constitutions  also  contain  provisions 
requiring  that  municipalities  in  borrowing  money  for  a  term  of 
years  must  make  definite  arrangements  for  paying  the  interest 
and  principal  as  they  fall  due.  In  this  connection  seventeen  of 
the   States,    namely  Arkansas,    California,    Colorado,    Georgia, 

1  Constitutional  references  are  as  follows:  Arkansas,  XVI,  1;  California,  XI,  13?,  18;  Colo- 
rado, XI,  8;  Georgia,  VII,  Sect.  Vll,  2;  Idaho,  Vlll,  3;  Illinois,  IX,  12;  Kentucky,  159;  Louisi- 
ana, 281,  317,  318,  321-323;  Missouri,  X,  12,  12a;  North  Dakota,  XII,  184;  New  Mexico,  IX,  12; 
Oklahoma,  X,  26,  27;  Pennsylvania,  XV,  3;  South  Carolina,  VIII,  6,  7;  South.Dakota,  XIII, 
5;  West  Virginia,  X,  8;  Wisconsin,  XI,  3. 

2  In  Wisconsin  debts  for  the  acquisition  of  land  for  municipal  purposes  may  run  for  as  long  as 
fifty  years. 

'  The  city  of  Philadelphia  may  issue  bonds  for  the  purchase  and  construction  of  certain  specified 
improvements  for  a  term  of  fifty  years. 

*  Term  of  loans  for  California  municipalities  in  general  is  forty  years;  in  San  Francisco,  San 
Jos6  and  Santa  Clara,  however,  debts  may  be  incurred  for  seventy-five  years. 


537 

Idaho,  Illinois,  Kentucky,  Louisiana,  ^Missouri,  New  IMexico, 
Ohio,  Oklahoma,  Pennsylvania,  South  Carolina,  South  Dakota, 
West  Virginia  and  Wisconsin,  require  that  no  municipality  shall 
incur  any  debt  unless  it  provides  at  the  same  time  for  the  levy- 
ing of  an  annual  tax  suificient  in  amount  to  pay  the  recurring 
interest  and  the  principal  on  the  same.  A  few  of  the  above- 
mentioned  States  place  limits  upon  the  tax  that  may  be  levied 
for  debt  purposes,  as  in  Arkansas,  which  provides  that  such 
tax  shall  not  exceed  seven  mills  on  the  dollar,  and  Colorado  and 
New  iSIexico,  which  establish  limitations  of  twelve  mills  on 
the  dollar. 

Proceeds  of  Loans  to  be  applied  to  Specified  Purposes. 
The  constitutions  of  some  of  the  States,  including  Arkansas, 
Kentucky,  Oklahoma,  Utah,  Montana,  IMissouri,  and  New 
Mexico,  have  attempted  to  make  certain  that  the  proceeds  of 
loans  issued  for  a  particular  purpose  shall  not  be  directed  to 
any  other  object.  The  common  provision  in  this  respect  is 
that  money  borrowed  by  any  municipality  "shall  be  applied  to 
the  purpose  for  which  it  was  obtained,  or  to  repay  such  loan, 
and  to  no  other  purpose  whatever." 

V.    RESTRICTIONS   UPON   IMUNICIPAL   INDEBTEDNESS    IN 
IVIASSACHUSETTS. 

In  Massachusetts  there  are  no  constitutional  restrictions  upon 
the  indebtedness  of  cities  and  towns,  but  these  matters  have 
been  regulated  by  general  laws  enacted  by  the  Legislature.  The 
first  statute  limiting  municipal  indebtedness  in  the  Common- 
wealth was  the  so-called  Municipal  Indebtedness  Act  of  1875 
(Chap.  209,  Acts  of  1875),  which  was  enacted  in  order  to  check 
the  rapid  growth  of  local  debts  during  the  period  at  the  close  of 
the  Civil  War.  The  need  for  such  legislation  is  shown  by  the 
fact  that  local  indebtedness  had  increased  from  $19,852,109  in 
1865  to  $80,427,245  in  1875,  or  an  increase  of  three  hundred 
and  five  per  cent,  while  the  increase  in  population  and  in 
property  valuation  on  the  other  hand  were  only  thirty  and 
eighty-five  per  cent  respectively  during  the  same  period.^ 

1  Annual  Address  of  Governor  Rice  to  the  General  Court,  1876,  Massachiiselts  Senate  Document 
No.  1  (1876),  14.    See  also  Hotise  Document  No.  1803  (.1913),  13. 


538 


Provisions  of  Act  or  1875. 

The  Municipal  Indebtedness  Act  of  1875,  as  amended  in  1885 
and  later  years  (Chap.  27,  Revised  Laws  of  1902),  provided  ^n 
the  first  place  that  the  indebtedness  of  any  city  should  not 
exceed  two  and  one-half  per  cent  of  the  average  valuation  of 
taxable  property  for  the  three  preceding  years,  while  the  in- 
debtedness of  a  town  was  not  to  exceed  three  per  cent  of  the 
valuation  for  the  preceding  year  alone.  It  was  expressly  stipu- 
lated, however,  that  a  city  or  town  might  incur  debts  outside  of 
the  statutory  limit  for  the  purpose  of  establishing,  purchasing 
or  extending  gas  or  electric  lighting  plants,  provided  that  such 
additional  debts  should  not  exceed  five  per  cent  of  the  taxable 
valuation  in  towns  and  one  and  one-half  per  cent  in  cities. 
It  was  also  provided  that  temporary  loans  for  the  abolition  of 
grade  crossings  and  in  anticipation  of  the  taxes  for  the  current 
year  should  not  be  reckoned  in  determining  the  authorized  limit 
of  indebtedness. 

In  the  second  place  a  two-thirds  majority  of  each  branch  of 
the  city  council  was  required  for  all  debts  except  temporary 
loans,  while  in  towns  a  similar  majority  of  the  voters  voting  at 
a  town  meeting  was  necessary.^ 

Thirdly  the  act  of  1875  enumerated  the  purposes  for  which 
debts  might  be  incurred  and  fixed  the  periods  of  time  over 
which  such  debts  might  be  extended.  Debts  incurred  for  water- 
works, lighting  plants,  playgrounds,  parks  and  sewers  were 
allowed  to  run  for  thirty  years,  those  for  schools  and  other 
public  buildings,  twenty  years.  All  other  debts  were  to  run  for 
ten  years  except  in  the  city  of  Boston,  where  the  limit  was  fixed 
at  twenty  years. 

Actual  Workings  of  Municipal  Indebtedness  Act  of  1875. 
Little  attempt  was  made  to  determine  the  actual  workings  of 
the  Municipal  Indebtedness  Act  until  1911-12,  when  the  Di- 
rector of  the  Bureau  of  Statistics,  under  authorization  from  the 
Legislature,  submitted  a  report  on  the  subject.^  The  general 
conclusion  of  the  report  was  that  the  act  of  1875  had  been 

1  In  the  case  of  temporary  loans  only  a  bare  majority  was  necessary. 

'  Report  of  a  Special  Investigation  Relative  to  the  Indebtedness  of  the  Cities  and  Towns  of  the  Com- 
monwealth, by  the  Director  of  the  Bureau  of  Statistics,  April  15,  1912.  Massachusetts  House 
Document  No.  2168  (1912). 


539 

evaded  in  a  number  of  cases  and  had  not  succeeded  in  checking 
the  rapid  growth  of  municipal  debts.  The  most  important 
findings  of  the  investigation  are  quoted  below:  — 

An  aggregate  municipal  indebtedness  for  the  cities  and  towns  of  the 
Commonwealth  amounting  to  approximately  a  quarter  of  a  billion  of 
dollars,  and  of  which  more  than  $238,000,000  is  funded  or  fixed,  is  unques- 
tionably a  serious  fact,  the  significance  of  which  is  not  lessened  by  the 
knowledge  that  in  our  cities  alone  the  latter  class  of  debt  is  increasing 
annually  at  the  rate  of  approximately  $7,000,000  and  in  our  large  towns  at 
the  rate  of  approximately  $700,000.  It  is  not  surprising,  therefore,  that 
this  situation  should  be  the  cause  of  increasing  apprehension  on  the  part  of 
the  public  and  that  the  question  should  be  seriously  raised  as  to  whether 
it  may  not  be  possible  by  some  comprehensive  legislation  to  check  the 
growiih  of  municipal  indebtedness  in  Massachusetts;  or,  at  least,  to 
restrict  more  carefully  the  purposes  for  wliich  our  cities  and  towns  should 
be  permitted  to  borrow  money.'- 

The  Legislature,  when  it  passed  the  Municipal  Indebtedness  Act  of 
1875,  established  the  principle  that  the  right  of  cities  and  towns  to  adminis- 
ter their  financial  affairs  was  not  an  unlimited  right.  It  laid  down  what 
were  intended  to  be  certain  definite  bounds  to  the  incurrence  of  debt,  speci- 
fying purposes  for  which  debts  might  be  incurred  and  the  periods  of  time 
to  which  loans  should  be  Umited;  and  it  provided,  furthermore,  that  the 
indebtedness  should  be  limited  to  a  certain  per  cent  of  the  valuation.  .  .  . 
What  our  legislators  could  not  foresee  was  the  ingenious  de\'ices  by  which 
waj^s  were  to  be  discovered  for  evading  the  clear  intent  of  the  law,  or, 
where  its  intent  was  not  clearly  expressed,  for  taking  refuge  in  that  form 
of  interpretation  which  would  most  conveniently  serve  an  immediate 
exigency,  political  or  otherwise.^ 

It  is  unfortunate  that  those  who  drew  the  statute  did  not  make  their 
intent  in  numerous  important  particulars  more  clear.  In  the  absence 
of  clarity  of  statement  and  of  judicial  interpretations,  it  is  not  surprising 
that  opinions  given  by  many  different  attorneys  should  not  be  uniform, 
even  when  rendered  in  good  faith.  Hence  it  is  that  after  the  lapse  of  a 
full  generation  we  are  again  confronted  with  substantially  the  same  prob- 
lem that  led  to  the  passage  of  the  act  of  1875  —  wath  a  state  of  aft'airs, 
in  many  of  our  municipaUties,  apparently  not  a  whit  better  than  if  no 
law  on  the  subject  had  ever  been  passed. ^ 

The  investigation  showed  that  the  most  common  method  of 
evading  the  debt  limit  in  cities  was  by  the  issue  of  demand 
notes  for  so-called  temporary  loans  in  anticipation  of  taxes. 

»  Repoit  of  a  Special  Investigation  Relative  to  the  Indebtedness  of  the  Cities  and  Towns  of  the  Com,- 
momvealth,  by  the  Director  of  the  Bureau  of  Statistics,  April  15,  1912.  Massachusetta  Houae 
Document  No.  2168,  p.  7  (1912). 

2  Ibid.,  p.  9. 

'  Ibid.,  p.  10. 


540 

These  demand  notes  were  oftentimes  allowed  to  run  for  a  term 
of  years  so  as  to  become  a  part  of  the  fixed  or  permanent  debt, 
despite  the  requirement  that  all  such  loans  should  be  paid 
within  one  year  from  the  date  of  issue.  In  regard  to  this 
method  of  getting  around  the  debt  limitations  the  Director  of 
the  Bureau  of  Statistics  reported  as  follows:  — 

The  law  authorizes  such  loans  simply  as  a  matter  of  convenience  for 
the  purpose  of  affording  a  means  of  meeting  current  expenses  pending 
collections  of  taxes  and  it  expresslj^  stipulates  that  all  such  loans  must 
be  paid  within  a  year  from  the  taxes  of  the  year  in  which  the  debt  is  in- 
curred. While  a  city  or  town  would  hardly,  in  the  face  of  this  law,  deliber- 
ately attempt  to  secure  a  loan  on  a  tax  note  for  a  period  in  excess  of  one 
year,  it  was  formerly  possible  to  issue  with  apparent  impunity  a  demand 
note  and  allow  it  to  remain  unpaid  for  a  generation,  or  so  long  as  the  holder 
refrained  from  demanding  payment.^ 

It  was  also  pointed  out  that  the  restrictions  placed  upon  the 
incurrence  of  funded  debt  by  general  law  had  been 

seriously  weakened  by  virtue  of  the  large  number  of  special  acts  passed 
by  the  Legislature  in  response  to  pleas  of  cities  and  towns  for  exemption 
from  its  provisions  from  time  to  time.  The  act  of  1875  had  scarcely  been 
placed  upon  the  statute  book  before  these  petitions  for  special  favor 
began  to  be  made,  and,  while  in  the  first  few  years  after  its  passage  they 
were  comparatively  few  in  number,  it  was  not  long  before  they  began  to 
multiply  rapidly.  The  number  of  such  special  acts,  many  of  which  took 
the  form  of  authorizing  the  issue  of  loans  for  some  particular  purpose 
outside  the  debt  limit,  run  literally  into  the  hundreds.  While  such  bor- 
rowings have  been  legalized  and  are,  therefore,  not  subject  to  the  criticism 
applying  to  debts  incurred  without  the  sanction  of  the  law,  their  number 
and  character  signify  one  of  two  things :  Either  the  exemptions  have  been 
granted,  in  many  instances,  too  complacently,  for  the  mere  asking  and 
without  sufficientlj^  stout  resistance  based  upon  careful  inquiry;  or  the 
general  law  was  itself  too  drastic  for  universal  application  and  was  not 
made  sufficiently  elastic  to  meet  natural  variations  in  local  conditions. 
The  gross  outstanding  debt  outside  the  limit  for  general  purposes,  under 
the  authority  of  special  legislation,  is  approximately  $73,000,000.^^ 

It  is  stated  that  between  1875  and  1912  no  fewer  than  fifteen 
hundred  special  acts  were  passed  by  the  Massachusetts  Legis- 
lature granting  various  cities  authority  to  borrow  outside  the 
debt  limit  for  one  reason  or  another.^ 

>  Massachusetts  House  Document  No.  Z168  {1912),  p.  13. 
2  Ibid.,  pp.  19-20. 

»  Report  of  the  Joint  Special  Committee  on  Municipal  Finance,  1913  (House  Document  No. 
1803),  p.  47. 


541 


Municipal  Finance  Act  of  1913. 

Following  the  report  of  the  Bureau  of  Statistics  a  joint  special 
committee  on  municipal  finance  was  appointed  by  the  Legisla- 
ture, which  in  1913  submitted  several  bills  proposing  a  revision 
of  the  limitations  on  municipal  debt.^  As  a  result  of  the  recom- 
mendations of  this  committee,  the  Legislature  passed  the 
"Municipal  Finance  Act  of  1913"  which  supersedes  the  law  of 
1875.2 

Limit  of  Amount  of  Debt. 

The  act  of  1913  makes  practically  no  change  in  the  debt 
limits  as  prescribed  in  the  earlier  law  except  to  provide  that  the 
valuation  of  property  upon  which  the  limit  is  based  shall  be 
the  average  assessed  value  for  the  three  preceding  years  in 
towns  as  well  as  in  cities.  As  it  now  stands  the  law  prescribes 
that  "a  city  shall  not  authorize  indebtedness  to  an  amount  ex- 
ceeding two  and  one  half  per  cent,  and  a  town  shall  not  au- 
thorize indebtedness  to  an  amount  exceeding  three  per  cent  on 
the  average  of  the  assessor's  valuations  of  the  taxable  property 
for  the  three  preceding  calendar  years."  ^ 

Exemptions  —  Temporary  Loans  and  Public  Utility  Bonds. 

In  computing  the  maximum  limit  beyond  which  cities  and 
towns  may  not  borrow  money  the  law  stipulates  that  the 
following  exemptions  shall  be  made:  (1)  temporary  loans  in 
anticipation  of  taxes;  (2)  debts  for  the  establishment,  purchase 
or  extension  of  waterworks;  (3)  debts  for  the  establishment  or 
equipment  of  lighting  plants,  provided  they  do  not  exceed  two 
and  one-half  per  cent  of  the  assessed  valuation  in  cities  and 
five  per  cent  in  towns;  and  (4)  debts  for  acquiring  lands  for 
playgrounds  not  exceeding  one  and  one-half  per  cent  of  the 
assessed  valuation  in  both  cities  and  towns.* 

In  order  to  prevent  the  evasion  of  the  debt  limit,  the  law 
provides  that  temporary  loans  in  anticipation  of  taxes  shall  not 
only  be  payable  within  one  year  from  the  date  of  issue,  but  also 

•  Report  of  the  Joint  Special  Committee  on  Municipal  Finance,  1913  (House  Document  No. 
1803),  p.  47. 

2  Acts  and  Resolves  of  Massachusetts,  1913,  Chap.  719,  Sects.  1-15.  For  amendments  see  General 
Acts  of  1915,  Chap.  115;  General  Acta  of  1916,  Chap.  62  and  Chap.  111.  For  the  text  of  the  law, 
see  Appendix,  p.  545. 

'  Acts  and  Resolves  of  Massachusetts,  1913,  Chap.  719,  Sect.  12. 

♦  Ibid.,  Sect.  6. 


542 

that  they  shall  not  be  renewed  or  paid  by  the  issue  of  new 
notes.  ^  The  issuing  of  notes  payable  on  demand  is  expressly 
prohibited.^ 

Although  not  a  part  of  the  Municipal  Finance  Act  of  1913, 
mention  should  be  made  in  this  connection  of  the  requirement 
that  all  notes  issued  by  towns  and  by  water,  watch,  light  and 
improvement  districts  must  be  approved  by  the  Director  of  the 
Bureau  of  Statistics.  These  matters  were  provided  for  by 
separate  acts  in  1910  and  1913.^ 

Purpose  and  Term  of  Loans. 
In  addition  to  fixing  a  limit  upon  municipal  indebtedness,  the 
Act  of  1913  enumerates  in  considerable  detail  the  purposes  for 
which  debts  may  be  incurred  and  the  terms  for  which  they  may 
run.  The  latter  vary  from  five  to  thirty  years  according  to  the 
object.    The  purposes  and  terms  of  loans  are  as  follows:  ■* 

(1)  For  the  construction  of  sewers  (thirty  years). 

(2)  Acquisition  of  land  for  public  parks  (thirty  years). 

(3)  Acquisition  of  land  for  general  public  purposes  (twenty 
years). 

(4)  For  the  construction  of  and  addition  to  school  and  other 
public  buildings  (twenty  years). 

(5)  For  the  construction  of  iron,  stone  or  concrete  bridges 
(twenty  years). 

(6)  For  the  original  construction,  widening  or  extension  of 
streets  (ten  years). 

(7)  For  the  construction  of  stone,  brick  or  other  permanent 
pavements  (ten  years);  for  macadam  pavement  (five  years). 

(8)  Purchase  of  land  for  cemeteries  (ten  years). 

(9)  For  additional  departmental  equipment  (five  years). 

(10)  For  the  construction  of  sidewalks  (five  years). 

(11)  For  connecting  dwellings  with  public  sewers  (five  years). 

(12)  For  abolition  of  nuisances  (five  years). 

(13)  For  extreme  emergency  appropriations  involving  the 
public  health  or  safety  (five  years). 

Debts  for  any  other  than  the  purposes  specified  are  pro- 

1  Acts  and  Resolves  of  Massachusetts,  1913,  Chap.  719,  Sect.  3. 

2  Ibid.,  Sect.  14. 

»  Ads  and  Resolves  of  Massachusetts,  1910,  Chap.  616;  Acts  and  Resolves  of  Massachusetts,  191S, 
Chap.  727. 

*  Acts  and  Resolves  of  Massachusetts,  1913,  Chap.  719,  Sect.  5. 


543 

hibited  under  the  general  law,  and  the  only  way  in  which  a  city 
or  town  may  borrow  for  additional  objects  is  by  obtaining  a 
special  act  from  the  Legislature. 

Method  of  Enforcement. 
As  a  means  of  enforcing  the  provisions  of  the  act  it  is  pro- 
vided that  the  State  Supreme  Court  or  the  Superior  Court  may 
be  appealed  to  for  a  writ  of  mandamus  to  compel  the  officials 
of  any  city  or  town  to  comply  with,  its  requirements.^ 

Actual  Workings  of  Act  of  1913. 
As  to  the  actual  operation  of  the  Act  of  1913,  the  Director 
of  the   Bureau   of   Statistics   had   the  following   statement  to 
make  in  his  seventh  annual  report:  — 

The  Municipal  Indebtedness  Act,  Chapter  719  of  the  Acts  of  1913, 
became  fully  effective  January  1,  1914,  and  I  think  I  may  say,  —  having 
due  regard  for  certain  temporary  difficulties  which  it  was  to  be  expected 
would  be  experienced  by  some  of  our  towns  while  adjusting  themselves 
to  the  new  conditions,  —  has  already  more  than  justified  its  passage 
and  been  productive  only  of  salutary  results.^ 

The  Director  of  the  Bureau  is  of  the  opinion,  however,  that 
the  limitation  on  the  total  amount  of  indebtedness  should  be 
increased  somewhat.  His  recommendations  on  this  point  are  as 
follows: 

The  debt  limit  for  cities  is  now  two  and  one-half  per  cent,  and  for 
toviTis  three  pei*  cent,  on  the  average  of  their  assessed  valuation  for  the 
three  preceding  calendar  years,  a  limitation  which  has  prevailed  without 
substantial  change  since  the  original  municipal  indebtedness  act  of  1875. 
Almost  as  soon  as  that  act  was  passed,  however,  our  cities  and  towns 
began  petitioning  the  Legislature  for  exemptions  and  the  list  of  special 
acts  to  permit  borrowing  outside  the  debt  limit  has  been  lengthening 
year  by  year,  so  that,  making  due  allowance  for  the  passage  of  numerous 
special  acts  in  the  past  which  perhaps  would  not  have  been  approved 
had  more  complete  information  as  to  their  necessity  been  available,  it  is 
an  open  question  and  has  been  for  some  time  whether  an  increase  of  the 
debt  limit  over  the  amount  fixed  under  conditions  of  municipal  life  pre- 
vailing forty  years  ago  is  not  demanded  by  considerations  entirely  con- 
sistent with  sound  public  policy.  But  the  effect  of  the  operation  of  the 
new  system  of  taxation  [Licome  Tax  Law  of  1916],  which  removes  the 

»  Acts  and  Resolves  of  Massachusetts,  191S,  Chap.  719,  Sect.  21. 

'  Seventh  Annual  Report  on  the  Statistics  of  Municipal  Finances  by  the  Director  of  the  Bureau 
of  Statistics,  1912  (Boston,  1914),  p.  xvii. 


544 

assessment  of  intangible  personal  property  from  the  domain  of  the  local 
authorities,  will  be  to  reduce  the  valuations  on  which  the  local  borrowing 
capacity  must  be  determined,  and  by  thus  contracting  the  basis  of  the 
computation,  will  materially  reduce,  in  many  instances,  the  actual  amoimt 
which  may  be  borrowed  for  needed  permanent  improvements.  I  there- 
fore recommend  that  legislation  be  enacted  with  a  view  to  increasing 
the  statutory  debt  limit  at  least  to  the  extent  to  which  it  may  be  reduced 
by  the  enactment  of  the  income-tax  law.^ 

VI.    CONCLUSION. 

The  above  analysis  shows  that  since  the  seventies  and 
eighties  most  of  the  States  have  placed  limitations  upon  the 
amount  and  purposes  of  municipal  indebtedness  either  by 
constitutional  provisions  or  by  statute.  The  tendency  to  con- 
tinue such  restrictions  at  the  present  time  is  shown  by  the  fact 
that  three  of  the  recent  Constitutions  —  Arizona  (1912),  Okla- 
homa (1907)  and  Virginia  (1902)  —  contain  definite  restrictions 
upon  the  amount  of  debt  that  may  be  incurred  by  municipal- 
ities; while  the  Constitution  of  Michigan  (1908)  and  that  of 
Ohio  (1912)  provide  that  the  Legislature  shall  pass  general 
laws  regulating  such  matters. 

In  all  five  of  the  above-mentioned  States,  as  well  as  by  recent 
amendments  in  New  York  (1909)  and  Pennsylvania  (1913), 
cities  are  given  the  right  to  borrow  outside  the  debt  limit  for 
the  construction  or  purchase  of  certain  specified  public  utilities, 
thus  indicating  a  disposition  to  broaden  the  borrowing  power  in 
the  case  of  publicly  owned  enterprises  of  a  productive  character. 

The  chief  criticism  directed  against  constitutional  debt  limits 
in  the  United  States  has  been  that  they  are  too  rigid  and  do 
not  take  into  consideration  the  needs  of  each  locality.  It  has 
been  pointed  out  that  the  English  method  of  administrative 
control  is  preferable  to  our  system  of  constitutional  or  statutory 
regulation.  In  England,  limitations  upon  municipal  indebted- 
ness are  not  fixed  by  statute  but  are  regulated  by  the  Local 
Government  Board  or  some  other  administrative  authority  of 
the  central  government.  The  request  of  each  city  to  borrow 
money  is  carefully  investigated  by  the  central  body,  which 
grants  or  withholds  permission  according  to  the  circumstances 
of  each  individual  case.^ 

1  Ninth  Annual  Report  on  the  Statistics  of  Municipal  Finances,  1914  (Boston,  1916),  p.  xvi. 
s  Lowell,  A.  L.     The  Government  oj  England  (1912  edition),  II,  190-191.     See  also  Munro,  W.  B., 
The  Government  of  European  Cities,  276-277. 


545 


Appendix. 


Provisions  of  the  Municipal  Finance  Act  of  1913  in  Regard  to 
Municipal  Indebtedness.^ 

Section  3.  Cities  and  towns,  and  fire,  water  and  watch  districts, 
so-called,  may,  by  a  majority  vote,  incur  debt  for  temporary  loans  in 
anticipation  of  the  revenue  of  the  financial  year  in  which  the  debt  is 
incurred  and  expressly  made  payable  therefrom  by  such  vote,  and  may 
issue  a  note  or  notes  therefor  to  an  amount  not  exceeding  in  the  aggregate 
the  total  tax  lew  of  the  preceding  financial  year,  together  '\\ith  the  bank, 
corporation  and  street  railway  tax  received  during  the  preceding  financial 
year,  exclusive  of  special  or  additional  assessments  or  revenue  from  any 
other  source  except  pajments  made  by  the  Commonwealth  in  lieu  of 
taxes  on  account  of  property  taken  for  institutions  or  for  metropolitan 
district  purposes.  Such  notes  shall  be  payable,  and  shaU  be  paid,  not 
later  than  one  year  from  the  date  thereof,  and  shall  not  be  renewed  or 
paid  by  the  issue  of  new  notes,  except  as  is  pro\dded  in  section  nine. 

Section  4.  Cities  and  towns  may,  by  a  majority  vote,  incur  debt 
for  temporary''  loans  for  the  pajinent  of  any  land  damages  or  any  propor- 
tion of  the  general  expenses  of  altering  a  grade  crossing  which  they  are 
required  primarily  to  pay  imder  the  pro\Tsions  of  law,  or  any  proportion 
of  the  expense  of  constructing  a  highway  in  anticipation  of  reimburse- 
ment by  the  Commonwealth,  such  reimbursement  first  to  have  been 
agreed  upon  by  the  Massachusetts  Highway  Commission,  and  may  issue 
a  note  or  notes  therefor  and  for  a  period  not  exceeding  one  year  from  the 
date  thereof;  and  when  any  money  so  paid  is  repaid  to  the  municipality, 
it  shall  be  applied  to  the  discharge  of  the  loan.  Notes  issued  under  the 
provisions  of  this  section  shall  not  be  renewed  or  paid  by  the  issue  of  new 
notes,  except  as  is  provided  in  section  nine. 

Section  5.  Cities  and  towns  may  incur  debt,  within  the  limit  of 
indebtedness  prescribed  in  this  act,  for  the  following  purposes,  and  payable 
within  the  periods  hereinafter  specified :  — 

(1)  For  the  construction  of  sewers  for  sanitary  and  surface  drainage 
purposes  and  for  sewage  disposal,  tliirty  years. 

(2)  For  acquiring  land  for  pubUc  parks  under  the  provisions  of  cliap- 
ter  twenty-eight  of  the  Revised  Laws  and  amendments  thereof,  thirty 
years. 

(3)  For  acquiring  land  for,  and  the  construction  of,  schoolhouses  or 
buildings  to  be  used  for  anj^  municipal  or  departmental  purpose,  including 
the  cost  of  original  equipment  and  furnishing,  twenty  years.'^ 

'  Acts  and  Resolves  of  Massachttsetts,  191S,  Chap.  719. 

»  Amended  in  1916  {General  Ads  of  1916,  Chap.  Ill)  so  as  to  authorize  incurring  of  debt  for 
purchase  of  land  for  any  public  purpose. 


546 

(4)  For  the  construction  of  additions  to  schoolhouses  or  buildings 
to  be  used  for  any  municipal  purpose,  including  the  cost  of  original  equip- 
ment and  furnisMngs,  where  such  additions  increase  the  floor  space  of 
said  buildings  to  which  such  additions  are  made,  twenty  years. 

(5)  For  the  construction  of  bridges  of  stone  or  concrete,  or  of  iron 
superstructure,  twenty  years. 

(6)  For  the  original  construction  of  streets  or  highwaj^s  or  the  exten- 
sion or  widening  of  streets  or  liighways,  including  land  damages  and 
the  cost  of  pavement  and  sidewalks  laid  at  the  time  of  said  construc- 
tion, ten  years. 

(7)  For  the  construction  of  stone,  block,  brick  or  other  permanent 
pavement  of  similar  lasting  character,  ten  years. 

(8)  For  macadam  pavement  under  specifications  approved  by  the 
Massachusetts  Highway  Commission,  five  years. 

(9)  For  the  construction  of  walls  or  dikes  for  the  protection  of  high- 
ways or  property,  ten  years. 

(10)  For  the  purchase  of  land  for  cemetery  purposes,  ten  years. 

(11)  For  such  part  of  the  cost  of  additional  departmental  equipment 
as  is  in  excess  of  twenty-five  cents  per  one  thousand  dollars  of  the  pre- 
ceding year's  valuation,  five  years. 

(12)  For  the  construction  of  sidewalks  of  brick,  stone,  concrete  or 
other  material  of  similar  lasting  character,  five  3'ears. 

(13)  For  connecting  dwellings  or  other  buildings  with  pubhc  sewers, 
when  a  portion  of  the  cost  is  to  be  assessed  on  the  abutting  property 
owners,  five  years. 

(14)  For  the  abatement  of  nuisances  in  order  to  conserve  the  public 
health,  five  j^ears. 

(15)  For  extreme  emergency  appropriations  involving  the  health  or 
safety  of  the  people  or  their  property,  five  years. 

Debts  may  be  authorized  under  the  provisions  of  this  section  only 
by  a  vote  of  two  tliirds  of  the  voters  present  and  voting,  or  of  two  tliirds 
of  all  the  members  of  a  city  council  or  other  governing  body,  taken  by 
yeas  and  nays,  and  subject  to  the  approval  of  the  mayor,  if  such  approval 
is  required  by  the  charter  of  the  city. 

Section  6.  Cities  and  towns  may  incur  debt,  outside  the  limit  of 
indebtedness  prescribed  in  tliis  act,  for  the  following  purposes  and  pay- 
able within  the  periods  hereinafter  specified :  — 

(1)  For  temporary  loans  under  the  provisions  of  sections  three,  four 
or  nine,  one  year. 

(2)  For  establishing  or  purchasing  a  system  for  supplying  the  inhab- 
itants of  a  city  or  town  with  water,  or  for  the  purchase  of  land  for  the 
protection  of  a  water  system,  or  for  acquiring  water  rights,  thirty  years. 

(3)  For  the  extension  of  water  mains  and  for  water  departmental 
equipment,  five  years. 

(4)  For  establishing,  purchasing,  extending  or  enlarging  a  gas  or  elec- 
tric lighting  plant  within  the  limits  of  the  territory  within  which  such 


547 

gas  or  electric  lighting  plant  is  authorized  to  distribute  its  product, 
twenty  years;  but  the  indebtedness  so  incurred  shall  be  limited  to  an 
amount  not  exceeding  in  a  town  five  per  cent  and  in  a  city  two  and  one 
half  per  cent  of  the  last  preceding  assessed  valuation  of  such  town  or  city.^ 

(5)  For  acquiring  land  for  the  purposes  of  a  public  playground,  as 
specified  in  section  nineteen  of  chapter  twenty-eight  of  the  Revised  Laws 
and  amendments  thereof,  thirty  j^ears;  but  the  indebtedness  so  incurred 
shall  be  limited  to  an  amount  not  exceeding  one  half  of  one  per  cent  of 
the  last  preceding  assessed  valuation  of  the  city  or  town. 

Debts  for  all  of  the  purposes  mentioned  in  this  section  shall  be  payable 
within  the  periods  above  specified  from  the  date  of  the  first  issue  of  bonds 
or  notes  on  account  thereof,  and  may  be  incurred  in  accordance  with  the 
provisions  of  existing  law,  except  in  so  far  as  the  same  are  inconsistent 
with  the  provisions  of  this  act.  All  other  debts  hereafter  incurred  by 
a  city  or  town  shall  be  reckoned  in  determining  its  limit  of  indebtedness, 
and  debts  authorized  under  the  provisions  of  this  section,  except  for 
temporary  loans,  may  be  incurred  only  by  a  vote  of  two  thirds  of  the  voters 
present  and  voting,  or  of  two  thirds  of  all  the  members  of  a  city  council 
or  other  governing  body,  taken  by  j^eas  and  nays,  and  subject  to  the 
approval  of  the  mayor,  if  such  approval  is  required  by  tiie  charter  of 
the  city. 

Section  7.  Cities  and  towns  shall  not  incur  debt  for  any  purpose  or 
for  any  period  of  time  other  than  as  specified  in  this  act  or  in  chapter  six 
hundred  and  thirty-four  of  the  acts  of  the  year  nineteen  hundred  and 
thirteen,  and  the  proceeds  of  any  sale  of  bonds  or  notes,  except  pre- 
miums, shall  be  used  only  for  the  purposes  specified  in  the  authoriza- 
tion of  the  loan.  .  .  . 

Section  12.  Except  as  other^^ise  authorized  by  section  six  of  this  act, 
or  by  chapter  six  hundred  and  thirty-four  of  the  acts  of  the  year  nineteen 
hundred  and  thirteen,  a  city  shall  not  authorize  indebtedness  to  an 
amount  exceeding  two  and  one  half  per  cent,  and  a  town  shall  not  author- 
ize indebtedness  to  an  amount  exceeding  three  per  cent,  on  the  average 
of  the  assessor's  valuations  of  the  taxable  property  for  the  three  preceding 
calendar  years,  the  valuations  being  fii-st  reduced  by  the  amount  of  all 
abatements  allowed  thereon  pre\dous  to  the  last  day  of  December  of 
the  preceding  calendar  year. 

Section  14.  Cities  and  to^vTis  shall  not  issue  any  notes  payable  on 
demand.  ... 


1  Amended  by  Chap.  115  of  General  Acts  of  1915. 


548 


BIBLIOGRAPHY. 

Constitutions  of  the  various  States.  For  citation  of  provisions  dealing  with 
hmitations  on  municipal  indebtedness,  see  above,  pp.  7,  16. 

Dillon,  John  F.  Commentaries  on  the  Law  of  Municipal  Corporations 
(5th  ed.)     5  vols.    Boston,  1911.    Vol.  I,  Chap.  6,  pp.  336-438. 

McQuiUin,  Eugene.  Treatise  on  the  Law  of  Municipal  Corporations. 
6  vols.    Chicago,  1913.    Vol.  5,  pp.  4679-4752. 

Massachusetts.  Bureau  of  Statistics.  Annual  Report  on  the  Statistics 
of  Municipal  Finances.  Vols.  1-9.  Boston,  1906-14.  Especially 
vol.  7,  1912,  pp.  xi-x^ii;  vol.  8,  1913,  pp.  ix-xiii;  and  vol.  9,  1914, 
pp.  ix-xvii. 

Bureau  of  Statistics.    Report  of  a  Special  Investigation  Relative 

to  the  Indebtedness  of  Cities  and  To-mis  of  the  Commonwealth, 
by  the  Director  of  the  Bureau  of  Statistics,  April  15, 1912.  Massachu- 
setts House  Document  No.  2168  (1912).    Boston,  1912. 

Report  of  the  Joint   Special  Committee  on   Municipal   Finance, 

January,  1913.  Massachusetts  House  Dociunent  No.  1803  (1913). 
Boston,  1913. 

New  York  (City).  Bureau  of  Municipal  Research.  New  York  City's 
Debt:  Facts  and  Law  Relating  to  the  Constitutional  Limitations  of 
New  York's  Indebtedness.    New  York,  1909. 

Bureau  of  Municipal  Research.    The  Purpose  of  the  Indebtedness 

of  American  Cities,  1880-1912,  by  Fred  E.  Clark.  Municipal  Re- 
search No.  75,  July,  1916.  New  York,  1916.  (Comprehensive 
analysis  of  the  purpose  of  municipal  debts.) 

Department  of  Finance.    The  Business  of  New  York  City:  Where 

the  City  gets  its  Money  and  How  it  spends  it,  by  Wm.  A.  Prender- 
gast,  comptroller.    New  York,  1911. 

Secrist,  Horace.  An  Economic  Analysis  of  the  Constitutional  Restric- 
tions upon  Pubhc  Indebtedness  in  the  United  States,  Bulletin  of 
the  University  of  Wisconsin,  No.  637.  Madison,  1914.  (Most  com- 
prehensive treatise  on  the  subject.) 

United  States.  Bureau  of  the  Census.  Financial  Statistics  of  Cities 
having  a  Population  of  over  30,000.  Washington,  1915.  Table  28, 
Total  and  Per  Capita  of  AU  Debts,  1915,  pp.  296-301. 

United  States.  Bureau  of  the  Census.  Wealth,  Debt  and  Taxation, 
1913.  Washington,  1915.  Vol.  I,  Part  III,  County  and  Municipal 
Indebtedness:  1913,  1902  and  1890;  pp.  227-446. 


BULLETIN  No.   15 


CONSTITUTIONAL   RESTRICTIONS    ON 
STATE    DEBTS 


CONTENTS. 


PAGE 

I.     Origin  and  Development  of  Constitutional  Restrictions  on 

State  Debts, 553 

II.    Nature  of  Restrictions  on  State  Indebtedness,   ....  554 

1.  States  in  which  the  Creation  of  a  Debt  is  prohibited  ex- 

cept for  Certain  Specified  Purposes,        ....  556 

2.  States  in  which  the  Creation  of  a  Debt  is  prohibited  ex- 

cept upon  Referendum, 558 

3.  States  in  which  Special  Conditions  must  be  complied 

with, 560 

4.  States  in  which  the  Aggregate  Amount  of  the  Debt  is 

fixed  in  the  Constitution, 561 

5.  States  in  which  the  Aggregate  Debt  Limit  may  be  ex- 

ceeded upon  Referendum, 562 

6.  Prohibitions  of  Indebtedness  for  Certain  Specified  Pur- 

poses,       563 

7.  Statutes  authorizing  Loans  —  Provisions,  Term  of  Loans 

and  Method  of  Payment, 565 

III.    Conclusion, 566 

Appendix  A.  —  References  to  Constitutional  Provisions,  .        .       .  571 

Appendix  B.  —  Typical  Constitutional  Provisions,     ....  572 

Appendix  C.  —  Table  shoeing  Per  Capita  Debt  of  States,  1915,     .  578 

Appendix  D.  —  Table  shomng  Loans  allowed  by  Constitution,       .  582 

Appendix  E.  —  Table  sho\ying  Duration  of  Loans,     ....  583 

Bibliography, 584 


CONSTITUTIONAL  RESTRICTIONS   ON  STATE 

.  DEBTS. 


I.    ORIGIN  AND  DEVELOPMENT  OF  CONSTITUTIONAL  RE- 
STRICTIONS ON  STATE  DEBTS. 

The  early  constitutional  restrictions  on  State  indebtedness 
may  be  traced  to  the  era  of  internal  improvements  during  the 
first  half  of  the  nineteenth  century.  During  this  period  the 
States  had  incurred  large  debts  in  order  to  construct  canals, 
turnpikes  and  other  enterprises,  or  had  pledged  their  credit  to 
private  corporations  for  such  purposes.  In  New  York,  for 
example,  the  State  debt  increased  $7,737,770  in  the  period 
from  1817  to  1825,  largely  as  a  result  of  the  construction  of  the 
Erie  Canal,  and  continued  to  grow  until  in  1846  the  total  debt 
was  about  $28,000,000  and  the  annual  interest  charge  over 
$1,400,000.^  From  1825  on,  the  movement  for  internal  im- 
provements —  especially  canals  —  spread  with  renewed  vigor 
throughout  the  country,  with  the  result  that  the  aggregate  debt 
of  all  of  the  States  increased  from  $60,000,000  in  1835  to 
$183,000,000  in  1839.  Indiana,  Illinois,  Michigan,  Arkansas, 
Florida  and  Mississippi  had  no  debt  in  1830;  in  1840  their  com- 
bined debt  was  more  than  $44,000,000.^ 

For  a  time  there  was  little  or  no  objection  to  this  state  of 
affairs,  but  following  the  crisis  of  1837  and  the  failure  of  many 
enterprises  it  was  necessary  for  the  legislatures  to  levy  high 
taxes  in  order  to  meet  the  situation.  The  immediate  result  was 
an  awakening  of  public  opinion,  \^^llen  the  storm  following 
the  crisis  of  1837  had  subsided  the  State  constitutions  underwent 
a  process  of  amendment  which  established  limitations  to  pre- 
vent a  repetition  of  former  abuses. 

The  first  State  to  include  a  constitutional  restriction  on 
State  indebtedness  was  Rhode  Island,  which  in  1842  provided 

'  Secrist,  H.,  An  Economic  Analysis  of  the  Constitutional  Restrictions  upon  Public  Indebtedness 
in  the  United  States.  Bulletin  of  the  University  of  Wisconsin,  No.  637  (Madison,  1914),  28.  See 
also  Governor's  Message,  1846,  New  York  Assembly  Document,  No.  3,  25. 

-  Secrist,  16. 


554 

that  the  Legislature  should  not  incur  debt  to  an  amount  exceed- 
ing $50,000  without  the  consent  of  the  people  except  in  time 
of  war  or  insurrection.^  Two  years  later  New  Jersey  included  a 
provision  in  her  Constitution  of  1844  which  has  served  as  the 
model  for  subsequent  restrictions.  It  was  provided  that  the 
Legislature  should  not  contract  debts  which  "singly  or  in  the 
aggregate  ...  at  anj-  time  exceed  $100,000  except  for  purposes 
of  war  or  to  repel  invasion  or  to  suppress  insurrection,  unless 
the  same  shall  be  authorized  by  a  law  for  some  single  work  or 
object,  to  be  distinctly  specified  therein."  Such  a  law,  more- 
over, was  required  to  provide  wa^'S  and  means,  exclusive  of 
loans,  to  pay  the  interest  on  the  debt  as  it  fell  due,  and  to  dis- 
charge the  principal  .  .  .  within  thirty-five  years,  and  was 
not  to  take  effect  until  it  .  .  .  had  been  submitted  to  the 
people  at  a  general  election,  and  had  received  the  sanction  of  a 
majority  of  all  the  votes  cast  for  and  against  it  at  such  elec- 
tion.^ 

The  improvidence  of  the  Legislature  in  contracting  debts 
led  to  the  calling  of  a  constitutional  convention  in  New  York, 
which  in  1846  placed  limitations  upon  the  power  of  the  Legisla- 
ture of  that  State  to  incur  further  debts.  Li  1843  IMichigan 
adopted  an  amendment  restricting  State  borrowing;  Louisiana 
in  1845;  Iowa  in  1846;  Wisconsin  and  Illinois  in  1848  and  so 
on.  The  restrictions  of  the  early  constitutions  were  almost 
invariably  adopted  by  the  newer  States  as  they  came  into  the 
Union,  so  that  to-day  there  are  only  four  States  —  Massachu- 
setts, Connecticut,  New  Hampshire,  and  Vermont  —  which  do 
not  impose  limitations  on  the  borrowing  power  of  the  Legis- 
lature. 

II.    NATURE  OF  RESTRICTIONS  ON  STATE  INDEBTEDNESS. 

The  various  State  constitutions  may  be  grouped  into  several 
general  classes  according  to  their  respective  methods  of  limiting 
State  indebtedness.  In  the  first  group  are  those  States  which 
provide  that  no  debt  shall  be  created  at  all  except  to  repel  in- 
vasion or  suppress  insurrection,  to  pay  or  refund  the  previous 
liabilities  of  the  commonwealth  outstanding  at  the  time  the 
limitation  was  adopted,  to  supply  deficiencies  in  revenues  and 

»  Rhode  Island  Constitution,  184£,  IV,  13. 

'  New  Jersey  Constitution,  1844,  IV,  Sec.  6,  Paragraph  4. 


555 

for  extraordinary  purposes.  There  are  sixteen  States  which 
employ  this  method  of  limitation;  namely,  Alabama,  Arkansas, 
Coloi-ado,  Florida,  Georgia,  Indiana,  Louisiana,  Michigan, 
Minnesota,  Missouri,  Ohio,  Pennsylvania,  Texas,  Virginia,  West 
Virginia  and  ^Yisconsin.^ 

In  the  second  group  of  States  no  debt  may  be  contracted 
unless  approved  by  referendum,  except  for  specified  purposes 
such  as  repelling  invasion,  suppressing  rebellion,  etc.  There 
are  eight  States  which  follow  this  plan;  namely,  Illinois,  Iowa, 
Kentucky,  New  Mexico,  New  York,  Oklahoma,  South  Carolina, 
and  Washington.  With  this  group  should  be  included  also  the 
three  States  of  Delaware,  INIaryland  and  North  Carolina,  whose 
constitutions  prohibit  the  borrowing  of  money  unless  certain 
specified  conditions  are  complied  with,  such  as  a  special  major- 
ity of  the  Legislature. 

The  third  group  of  States,  including  Maine,  Nebraska, 
Nevada,  North  Dakota,  Oregon  and  South  Dakota,  fix  a  gen- 
eral sum  varying  from  $50,000  to  $300,000  and  provide  that 
debt  in  excess  of  such  amounts  shall  not  be  incurred  except 
for  the  special  purposes  above  mentioned.  The  States  of  Cali- 
fornia, Idaho,  Kansas,  Montana,  New  Jersey  and  Rhode  Island 
also  fix  certain  limits  in  their  respective  constitutions,  but  pro- 
vide that  the  maximum  may  be  exceeded  upon  a  referendum 
vote.  Utah  and  Wyoming,  instead  of  establishing  a  definite 
sum  in  the  constitution,  fix  the  limit  of  indebtedness  at  a  cer- 
tain percentage  of  the  assessed  value  of  taxable  property  in  the 
State. 

In  addition  to  the  above  limitations  practically  all  of  the 
State  constitutions  have  set  up  further  checks  on  State  in- 
debtedness by  specifying  certain  purposes  for  which  the  Legis- 
lature may  not  pledge  the  credit  of  the  State,  such  as  assum- 
ing any  private  debt,  loaning  credit  to  municipalities  or  to 
private  corporations,  contracting  debt  for  internal  improve- 
ments, or  becoming  stockholders  in  private  corporations.- 

Thus  it  is  seen  that  all  of  the  States  except  Massachusetts, 
Connecticut,  New  Hampshire  and  Vermont  have  provided  in 
their  constitutions  for  some  kind  of  limitations  on  the  borrow- 

»  Since  the  above  statement  was  prepared,  Massachusetts  has  adopted  a  constitutional  amend- 
ment of  this  kind.    See  Appendix  B. 

2  In  Mississippi  and  Tennessee  there  are  no  restrictions  on  the  borrowing  power  of  the  State 
other  than  those  of  this  nature. 


556 

ing  power  of  the  Legislature.  It  should  be  noted,  however, 
that  as  a  general  rule  there  are  no  limitations  on  the  amount 
of  money  which  may  be  borrowed  for  repelling  invasion,  sup- 
pressing insurrection  or  defending  the  State  or  the  United  States 
in  war. 

Following  is  an  analysis  of  the  limitations  as  set  forth  in  the 
various  State  constitutions. 

1.    States  in  which  the  Creation  of  a  Debt  is  prohibited 
EXCEPT  for  Certain  Specified  Purposes. 

In  sixteen  States,  including  Alabama,  Arkansas,  Colorado, 
Florida,  Georgia,  Indiana,  Louisiana,  Michigan,  Minnesota, 
Missouri,  Ohio,  Pennsylvania,  Texas,  Virginia,  West  Virginia 
and  Wisconsin,  no  debt  may  be  created  by  the  Legislature 
except  for  certain  specified  purposes,  as  follows :  ^  — 

To  repel  Invasion,  sup-press  Insurrection  and  defend  the  State 
in  War.  —  In  all  of  the  above-mentioned  States  except  Arkan- 
sas and  Missouri  exceptions  are  made  in  f3,vor  of  borrowing 
for  the  purposes  of  repelling  invasion,  suppressing  insurrection 
or  defending  the  State  in  war. 

To  pay  Existing  Debt.  —  Also  a  majority  of  the  States  which 
prohibit  the  incurring  of  general  indebtedness  provide  that 
debts  may  be  created  to  pay  obligations  existing  at  the  time 
the  limitation  was  adopted  or  to  refund  bonds  already  issued. 

The  constitutions  of  Alabama,  Georgia,  Pennsylvania  and 
Texas  provide  that  the  prohibition  on  State  debt  shall  not 
prevent  the  borrowing  of  money  to  pay  the  "existing  debt"  of 
the  State;  nor  of  Ohio  to  redeem  the  present  outstanding  debt; 
nor  of  Virginia  and  West  Virginia  to  redeem  the  previous  liabil- 
ity of  the  State.  In  Florida  the  Legislature  may  issue  bonds  in 
order  to  refund  at  a  lower  rate  of  interest  bonds  already  issued; 
in  Missouri  debts  may  be  incurred  for  the  renewal  of  existing 
bonds  when  they  cannot  be  paid  at  maturity  out  of  the  sinking 
fund  or  otherwise.  Under  the  Louisiana  Constitution  serial 
bonds  may  be  issued  by  the  Board  of  Liquidation  of  State 

1  Alabama,  XI,  213;  Arkansas,  XVI,  1,  2;  Colorado,  XI,  3,  4,  5;  Florida,  IX,  6;  Georgia, 
Vll,  Sec.  Ill,  1,  Sec.  IV,  1;  Indiana,  X,  5;  Louisiana,  46;  Michigan,  X,  10,  11;  Minnesota,  IX, 
5,  6,  7,  8;  Missouri.  IV,  44-46;  Ohio,  Vlll,  1,  2,  3;  Pennsylvania,  IX,  4,  5;  Texaa,  III,  49;  Vir- 
ginia, XIII,  184;  West  Virginia,  X,  4;  Wisconsin,  VIII,  4,  6,  7,  8,  9.  For  typical  constitutional 
provisions  see  Appendix  B. 


557 

Debt  to  refund  the  specified  bonded  debt  existing  at  the  time  of 
the  constitutional  limitation.^  In  Colorado  there  is  specific 
authorization  to  contract  debt  not  exceeding  $2,115,000  to  fund 
the  outstanding  State  warrants  and  the  interest  thereon. 

To  supply  Deficiencies  of  Revenue.  —  Also  most  of  the  States 
which  prohibit  the  creation  of  debt  except  for  certain  purposes 
provide  that  temporary  loans  may  be  incurred  to  a  limited 
amount  varying  from  $100,000  to  $1,000,000  in  order  to  supply 
deficiencies  of  revenue  or  for  temporary  purposes.  Such  provi- 
sions are  found  in  the  constitutions  of  eleven  of  the  sixteen 
States  including  Alabama,  Colorado,  Georgia,  Indiana,  Michi- 
gan, Missouri,  Ohio,  Oklahoma,  Pennsylvania,  Texas,  Virginia 
and  West  Virginia.  Temporary  loans  are  generally  justified 
on  the  grounds  that  the  income  and  outgo  of  public  funds  never 
exactly  offset  each  other  and  that  it  is  better  to  anticipate  taxes 
by  loans  than  to  constantly  tamper  with  the  tax  rate.^ 

In  Alabama  temporary  loans  may  be  negotiated  by  the  Gov- 
ernor for  deficiencies  in  the  treasury  to  the  amount  of  $300,000, 
with  the  further  limitation  that  no  new  loan  is  to  be  issued 
until  the  temporary  loans  to  meet  the  total  deficiency  in  the 
treasury  are  paid.  In  Colorado  the  amount  of  debt  that  may  be 
incurred  in  any  year  to  meet  a  deficit  in  the  revenue  may  not 
exceed  one-quarter  of  a  mill  on  each  dollar  of  taxable  property 
and  the  aggregate  amount  of  debt  shall  not  at  any  time  exceed 
three-quarters  of  a  mill  until  the  valuation  equals  $100,000,000, 
and  after  that  time  shall  not  exceed  $100,000;  in  Georgia  the 
amount  is  limited  to  $500,000  and  must  be  paid  out  of  taxes 
levied  for  the  year  in  which  the  loan  is  made;  in  Michigan  the 
limit  is  $250,000  in  the  aggregate;  in  Ohio  indebtedness  for 
deficiencies  in  revenue,  together  with  that  for  expenses  not 
provided  for,  is  never  to  exceed  $750,000  in  the  aggregate;  in 
Pennsylvania  the  limit  is  $1,000,000  in  the  aggregate;  in  Texas, 
$200,000  in  the  aggregate;  while  in  Missouri  if  more  than 
$250,000  is  borrowed  for  any  J^ear  for  deficiencies  in  revenue  and 
for  unforeseen  emergencies,  such  action  must  be  approved  by 
referendum. 

Extraordinary  Expenditures.  —  In  Minnesota  and  Wisconsin 
borrowing  to  meet  extraordinary  expenditures  is  excepted  from 

'  Constitution  of  Louisiana,  Sec.  324.  •  Secrist,  38. 


558 

the  general  prohibition  on  State  indebtedness;  the  debt  which 
may  be  created  for  this  purpose  in  Minnesota  being  limited 
to  $250,000  in  the  aggregate;  while  in  Wisconsin  it  may  not 
exceed  $100,000  and  the  law  creating  such  debt  must  provide 
for  the  le^'ying  of  a  tax  to  pay  the  interest  and  the  principal 
within  five  years. 

Expenses  not  provided  for.  —  In  Ohio  expenses  not  provided 
for  may  be  met  by  borrowing. 

Interest  on  State  Debt.  —  Under  the  Indiana  Constitution 
money  may  be  borrowed  to  pay  the  interest  on  the  State  debt. 

Unforeseen  Emergencies.  —  In  Missouri  the  State  may  con- 
tract debts  to  provide  for  unforeseen  emergencies  on  the  recom- 
mendation of  the  Governor;  but  if  the  amount  for  this  purpose 
and  for  deficiencies  in  revenue  exceeds  $250,000  for  any  year, 
such  debt  may  be  provided  for  only  by  an  act  of  the  Legisla- 
ture approved  by  popular  referendum.  If  such  debt  is  incurred 
without  a  referendum  it  is  to  be  redeemed  within  two  years 
from  its  creation;   if  by  referendum  within  thirteen  years. 

Public  Buildings.  —  Colorado  makes  a  special  exception  in 
favor  of  borrowing  money  for  the  purpose  of  erecting  buildings 
for  the  use  of  the  State,  with  the  proviso  that  the  debt  created 
for  such  purpose  in  any  one  year  shall  not  exceed  one-half 
mill  on  each  dollar  valuation  of  taxable  property  and  shall  not 
be  more  than  $50,000  in  the  aggregate  at  any  time  unless  ap- 
proved by  popular  referendum,  when  the  total  amount  of 
debt  that  may  be  incurred  for  public  buildings  may  be  in- 
creased to  three  mills  of  the  taxable  valuation.^ 

2.    States  in  which  the  Creation  of  a  Debt  is  prohibited 
EXCEPT  UPON  Referendum. 

The  States  of  Illinois,  Iowa,  Kentucky,  New  Mexico,  New 
York,  Oklahoma,  South  Carolina  and  Washington  —  eight  in 
number  —  follow  a  still  different  method  of  limiting  State 
indebtedness.^  In  these  common>\^ealths  no  debt  may  be  con- 
tracted by  the  Legislature  except  for  certain  specified  purposes 
unless  by  a  special  law  which  must  be  referred  to  the  voters 

'  Constitution  of  Colorado,  XI,  3,  5. 

2  IlUnois,  IV,  18;  Iowa,  VII,  2-6;  Kentucky,  49,  50;  New  Mexico,  IX,  7,  8,  9,  15;  New  York, 
VII,  2-5;  Oklahoma,  X,  23-25;  South  Carolina,  X,  7,  11;  Washington,  VIII,  1,  2,  3.  For  typical 
constitutional  provisions  see  Appendix  B. 


559 

and  approved  by  them  at  a  general  or  special  election.  As  a 
general  rule  there  is  no  limit  in  these  States  upon  the  total 
amount  that  may  be  borrowed  by  approval  of  popular  vote. 
New  Mexico,  however,  is  an  exception,  as  no  debt  may  be 
created  in  that  State,  even  by  referendum,  if  the  total  indebted- 
ness would  be  made  thereby  to  exceed  one  per  cent  of  the 
assessed  valuation  of  all  property  in  the  State. 

The  purposes  for  which  debt  may  be  contracted  in  this 
group  of  States  without  a  referendum  are  as  follows:  — 

To  repel  Invasion,  suppress  Insurrection  or  defend  the  State.  — 
All  of  the  State  constitutions  except  that  of  South  Carolina 
permit  borrowing  for  such  purpose  without  a  referendum. 

For  Deficiencies  in  Revenues.  —  All  of  the  States  in  this  group 
likewise  permit  temporary  loans  for  deficiencies  in  revenues 
without  referendum  to  a  limited  amount  varying  from  $200,000 
to  $1,000,000.1 

Highways.  —  New  York  by  a  constitutional  amendment  of 
1905  authorizes  loans  for  the  construction  of  highways  without 
referendum,  but  such  debts  must  never  at  any  one  time  exceed 
$50,000,000.2 

The  States  which  require  a  referendum  on  State  borrowing 
usually  prescribe  certain  regulations  as  to  submitting  the  ques- 
tion to  the  voters  and  as  to  the  majority  required  for  ratifica- 
tion. As  a  general  rule  the  States  which  employ  this  method 
of  restricting  indebtedness  provide  that  the  statute  proposing 
the  creation  of  any  debt  shall  be  submitted  at  a  general  elec- 
tion. In  New  York,  however,  such  an  act  cannot  be  submitted 
to  the  voters  within  three  months  of  its  passage  by  the  Legis- 

1  Iowa.  —  Debt  to  meet  deficiencies  in  revenues,  together  with  that  for  expenses  not  provided 
for,  may  not  exceed  $250,000  in  the  aggregate  exclusive  of  the  State's  obligation  to  make  good 
the  losses  of  permanent  school  or  university  funds  by  default. 

Illinois.  —  Debt  to  meet  deficiencies  in  revenues  fixed  at  $250,000  unless  exceeded  by  refer- 
endum. 

Kentucky.  —  Debt  to  meet  deficiencies  in  revenues  limited  to  $500,000  unless  exceeded  by  ref- 
erendum. 

New  Mexico.  —  Debt  to  meet  deficiencies,  together  with  debt  for  necessary  expenses,  limited 
to  $200,000  unless  exceeded  by  referendum. 

New  York.  —  Debt  to  meet  deficiencies,  together  with  debt  for  expenses  not  provided  for,  not 
to  exceed  $1,000,000  in  aggregate  except  by  referendum. 

Oklahoma  and  Washington.  —  Debt  to  meet  deficiencies  in  revenues,  together  with  that  for 
expenses  not  provided  for,  not  to  exceed  $400,000  in  the  aggregate  unless  by  referendum.  In 
Washington  the  State's  obligations  to  make  good  the  losses  of  educational  funds  by  default  are 
not  to  be  included  as  a  part  of  the  debt  thus  limited. 

South  Carolina.  —  Money  may  be  borrowed  for  ordinary  and  current  business  of  the  State 
without  referring  the  same  to  the  people.    No  limit  on  amount. 

'  Constitution  of  New  York,  Article  VII,  12. 


560 

lature,  nor  can  it  be  presented  at  an  election  when  any  other 
law  is  referred  to  the  people.^ 

As  to  the  popular  vote  necessary  for  approval,  a  part  of  the 
States  require  a  majority  of  all  votes  cast  for  and  against  the 
proposition.^  The  others  require  a  special  majority,  which  in 
Illinois  is  a  majority  of  all  votes  cast  at  the  same  election  for 
members  of  the  general  assembly;  and  in  South  Carolina  a 
two-thirds  majority  of  those  voting  on  the  question. 


3.    States  in  which  Special  Conditions  must  be  complied 

WITH. 

Delaware,  North  Carolina  and  Maryland,  instead  of  requiring 
a  referendum  on  State  borrowing,  provide  that  certain  con- 
ditions shall  be  complied  with  before  the  debt  may  be  created.^ 
In  Delaware  no  money  is  to  be  borrowed  or  debt  created  by 
the  State  unless  pursuant  to  an  act  of  the  Legislature  passed  by 
three-fourths  of  the  members  elected  to  each  house  except  to 
supply  casual  deficiencies  of  revenue,  repel  invasion,  suppress 
insurrection,  defend  the  State  in  war  or  pay  existing  debts. 
Maryland  uses  a  still  different  method  which  is  not  so  rigid  as 
that  of  the  other  States,  the  provision  being  that  the  Legislature 
may  not  contract  debt  unless  by  a  law  providing  for  the  collec- 
tion of  a  tax  to  pay  the  interest  and  discharge  the  principal 
within  fifteen  years,  except  that  the  Legislature  may  without 
levying  such  a  special  tax  borrow  $50,000  for  temporary  de- 
ficiencies and  may  contract  debts  to  any  amount  in  order  to 
defend  the  State.  In  North  Carolina  the  Legislature  is  pro- 
hibited from  contracting  new  debt  until  the  State's  bonds  shall 
be  at  par  (except  to  supply  a  casual  deficit  or  for  suppressing 
insurrection  or  defending  the  State)  without  providing  in  the 
same  law  for  a  special  tax  to  pay  the  interest  annually. 

1  IlUnois.  IV,  18;  Iowa,  VII,  5;  Kentucky,  50;  New  Mexico,  IX,  8;  New  York,  VII,  4;  Okla- 
homa, X,  25;    South  Carolina,  X,  11;   Washington,  VIII,  3. 

2  Iowa,  Kentucky,  New  Mexico,  New  York,  Oklahoma  and  Washington. 
»  Delaware,  VIII,  3;   Maryland,  III,  34;    North  Carolina,  V,  4. 


561 


4.    States  in  which  the  Aggregate  Amount  of  the  Debt 
IS  FIXED  IN  the  Constitution. 

The  Constitutions  of  Arizona,  Maine,  Nebraska,  Nevada, 
North  Dakota,  Oregon,  South  Dakota  and  Utah  limit  State 
indebtedness  by  fixing  the  aggregate  amount  of  debt  that  may 
be  contracted  and  provide  that  no  greater  indebtedness  shall 
be  incurred  except  for  certain  specified  purposes.^ 

In  Oregon  the  limit  is  $50,000;  in  Arizona  $350,000;  in 
Nebraska  a  maximum  of  $100,000  may  be  borrowed  for  casual 
deficits  or  failure  in  revenue;  in  South  Dakota  the  limit  is  also 
$100,000,  with  the  further  limitation  that  debt  to  this  amount 
may  be  created  only  for  the  purposes  of  defraying  extraordinary 
expenses,  making  public  improvements  or  meeting  deficiencies 
in  revenues;  in  North  Dakota  the  aggregate  debt  limit  is 
$200,000  for  deficiencies  in  revenues  or  extraordinary  emer- 
gencies and  exclusive  of  the  debt  existing  at  the  time  the 
Constitution  was  adopted;  while  in  Maine  and  Nevada  the 
limit  is  $300,000  in  the  aggregate.  In  Utah  debt  may  be  in- 
curred for  casual  deficits  or  failures  in  revenue  and  for  neces- 
sary expenditures  for  public  purposes  to  the  amount  of  one 
and  one-half  per  cent  of  the  value  of  taxable  property  in  the 
State. 

As  a  general  rule  the  States  which  fix  definite  limits  in  their 
constitutions  provide  that  debts  for  certain  specific  purposes 
shall  not  be  included  within  such  limits  and  that  the  maximum 
debt  may  be  exceeded  for  certain  purposes  as  follows :  — 

Previous  Debts  not  included.  —  The  Constitutions  of  Nevada 
and  South  Dakota  provide  that  the  Territorial  debts  already 
assumed  are  not  to  be  included  in  determining  the  aggregate 
debt  limit.  In  North  Dakota  bonds  issued  to  refund  the  exist- 
ing debt  are  not  to  be  continued  as  a  part  of  the  amount 
limited  by  the  Constitution;  while  in  Maine  the  limit  does  not 
refer  to  any  moneys  deposited  with  the  State  by  the  United 
States  or  any  moneys  held  in  trust  for  Indian  tribes.  The 
Maine  Constitution  also  authorizes  the  State  to  issue  bonds 
outside    of   the    debt   limit   payable   within   twenty-one   years 

»  Arizona,  IX,  5;  Maine,  IX,  14,  15,  17;  Nebraska,  XII,  1;  Nevada,  IX,  3,  XVII,  7;  North 
Dakota,  XII,  182;  Oregon,  XI,  7;  South  Dakota,  XIII,  2,  3;  Utah,  XIV,  1,  2.  For  table  showing 
amount  of  debt  permitted  in  the  States  of  this  group  see  Appendix  C. 


562 

solelj^  for  the  reimbursement  of  cities  and  towns  for  expenses 
incurred  during  the  Civil  War,  provided  that  such  bonds  shall 
not  exceed  the  total  amount  of  $3,500,000.^ 

For  Permanent  Improvements.  —  In  Oregon  the  debt  limit  of 
$50,000  may  be  exceeded  by  an  amount  not  greater  than  two 
per  cent  of  the  assessed  valuation  of  property  in  the  State  in 
order  to  build  and  maintain  permanent  roads;  and  in  Maine 
debts  for  building  and  maintaining  highways  are  not  included 
within  the  limit.  The  Legislature  of  that  State  may  authorize 
bonds  not  exceeding  $2,000,000  at  any  one  time  to  be  devoted 
solely  to  the  building  and  maintaining  of  State  highways,  the 
total  amount  of  such  bonds  outstanding  never  to  exceed 
$2,000,000.2 

To  repel  Invasion,  suppress  Insurrection  or  defend  the  State 
in  War.  —  The  maximum  debt  limit  may  also  be  exceeded  in 
practically  all  of  the  States  for  the  purpose  of  repelling  invasion, 
suppressing  insurrection  or  defending  the  State  in  war. 

5.     States  in  which  the  Aggregate  Debt  Limit  may  be 
exceeded  upon  referendum. 

The  Constitutions  of  California,  Idaho,  Kansas,  Montana, 
New  Jersey,  Rhode  Island  and  Wyoming  also  contain  maxi- 
mum debt  limits,  but  provide  that  such  limitations  may  be  ex- 
ceeded by  a  referendum  vote.^  In  Rhode  Island  the  limit  is 
fixed  at  $50,000;  in  Montana  and  New  Jersey  at  $100,000;  in 
California  $300,000.  In  Kansas  the  amount  which  may  be 
borrowed  for  extraordinary  expenses  or  for  public  improve- 
ments is  set  at  $1,000,000;  and  in  Idaho  at  $2,000,000,  ex- 
clusive of  the  debt  of  the  Territory  at  the  time  of  its  admis- 
sion, and  certain  other  specified  debts.  Wyoming  employs  a 
slightly  different  method  of  limitation.  Except  to  suppress 
insurrection  or  to  provide  for  the  public  defense  the  State  is 
not  to  create  any  indebtedness  exceeding  one  per  cent  of  the 
assessed  valuation  of  property  in  the  State,  with  the  further 

1  Maine,  IX,  15. 

'  Maine,  IX,  17,  Amendment  No.  14,  adopted  1912. 

'  California,  XVI,  1;  Idaho,  VIII,  1,  amendment  of  1912;  Kansas,  XI,  5,  6,  7;  Montana,  XIII, 
2;  New  Jersey,  IV,  Sec.  VI,  3,  4;  Rhode  Island,  IV,  13;  Wyoming,  XVI,  1,  2.  For  typical  con- 
stitutional provisions  see  Appendix  B. 


563 

provision  that  no  indebtedness  in  excess  of  the  taxes  of  the 
current  year  is  to  be  created  unless  approved  by  the  voters.^ 

Indebtedness  beyond  the  above-mentioned  amounts  can  be 
incurred  in  all  of  the  States  in  this  group  only  by  a  popular 
referendum,  with  the  exception  that  money  may  usually  be 
borrowed  in  excess  of  the  limitation  for  the  purpose  of  war, 
to  repel  invasion  or  suppress  insurrection  without  such  a 
referendum. 

The  constitutions  of  most  of  the  States  prescribe  the  method 
of  referring  the  question  to  the  voters  and  the  popular  ma- 
jority required.  As  a  general  rule  the  law  authorizing  indebted- 
ness in  excess  of  the  constitutional  limitation  must  be  sub- 
mitted at  a  general  election.  In  all  of  the  States  in  this  group 
except  Kansas  the  vote  required  is  merely  a  majority  of  those 
voting  on  the  proposition;  in  Kansas  the  requirement  is  a 
majority  of  the  vote  cast  at  the  election  at  which  the  act  is 
submitted. 

6.    Prohibitions  of  Indebtedness  for  Certain  Specified 

Purposes. 

In  the  preceding  analysis  of  State  debt  limits  no  attention 
has  been  given  to  constitutional  restrictions  against  incurring 
debt  for  specific  purposes.  In  addition  to  the  general  limita- 
tions on  the  borrowing  power  of  the  Legislature,  practically  all 
of  the  State  constitutions  except  those  of  Massachusetts, 
Connecticut,  New  Hampshire  and  Vermont  prohibit  the  Legis- 
lature from  lending  or  pledging  the  public  credit  to  private 
enterprises  or  to  localities  or  both,  with  the  additional  limita- 
tion in  most  cases  that  the  liabilities  or  debts  of  individuals, 
associations  or  corporations  are  not  to  be  assumed  by  the 
State. ^     About  one-third  of  the  States  in  the  Union  provide 

'  For  table  showing  amount  of  debt  permitted  see  Appendix  C. 

2  Alabama,  IV.  93;  XHI,  253;  Arizona,  IX,  7;  X,  Railroads,  5;  Arkansas,  XII,  12;  XVI, 
1;  California,  IV,  31 ;  XII,  13;  Colorado,  XI,  1;  Delaware,  VIII,  4;  Florida,  IX,  10;  Georgia, 
VII,  Sec.  V,  1  and  Sec.  VIII,  1;   Idaho,  VIII,  2;  XII,  3;  Illinois,  IV.  20;  IX,  13;  Indiana.  X,  6,  7; 

XI,  12;  Iowa,  VII,  1;  VIII,  3;  Kentucky,  176,  177;  I^uisiana,  58;  Maine,  IX,  14,  15;  Maryland, 
III.  34;  Michigan,  X.  12,  13,  14;  Minnesota,  IX,  10;  Mississippi,  XIV,  258;  Missouri,  IV,  45, 
46;  Montana,  V,  38;  XIII,  4;  Nebraska,  XII,  3;  Nevada,  VIII,  9;  IX,  4;  New  Jersey,  IV,  Sec. 
VI,  3;  New  Mexico,  IX.  14;  New  York.  VII,  1,  10;  VIII,  9;   North  Carolina,  V,  4;   North  Dakota. 

XII.  185;  Ohio,  VIII,  4,  5;  Oklahoma,  X.  14,  15;  Oregon.  XI.  8;  Pennsylvania.  IX,  6,  9;  South 
Carolina,  X,  6;  South  Dakota,  XIII.  1 ;  Tennessee  II,  31;  Texas,  III,  50.  51 ;  Utah.  VI,  31;  XIV, 
6;  Virginia,  XIII,  185;  Washington,  VIII,  5;  XII,  9;  West  Virginia,  X,  6;  Wisconsin,  VIII,  3; 
Wyoming,  III,  39;    XVI,  6. 


564 

that  the  public  credit  is  not  to  be  given  to  local  units  of  gov- 
ernment such  as  cities,  towns,  counties  and  other  political 
subdivisions  of  the  commonwealth.  Approximately  an  equal 
number  prohibit  the  State  from  assuming  the  indebtedness  of 
such  local  governments  unless  such  debts  were  incurred  to 
repel  invasion,  suppress  insurrection  or  defend  the  State. 

A  few  of  the  States,  however,  make  special  exceptions  in 
favor  of  lending  State  funds  to  individuals,  associations  or 
municipalities  for  educational  and  charitable  purposes.  In 
California,  for  example,  the  prohibition  against  pledging  the 
State's  credit  to  local  communities  or  corporations  does  not 
prevent  the  Legislature  from  granting  aid  to  institutions  for  the 
support  of  children  or  aged  persons;  or  in  New  Mexico  for  the 
care  of  the  indigent  or  for  educational  purposes;  or  in  New 
York,  North  Dakota,  South  Dakota  and  Wyoming  for  the 
necessary  support  of  the  poor.  Delaware  and  North  Carolina 
also  permit  aid  to  private  enterprises  under  certain  restrictions, 
the  Delaware  Constitution  providing  that  the  State's  credit 
may  be  pledged  by  an  act  of  the  Legislature  passed  by  three- 
fourths  of  all  the  members  elected  to  each  house;  while  in 
North  Carolina  such  assistance  may  be  given  if  the  approval 
of  a  popular  majority  of  the  persons  voting  on  the  proposition 
is  secured. 

Some  of  the  States  are  not  satisfied  with  general  limitations 
against  loaning  State  moneys  to  private  corporations,  but  also 
include  in  their  constitutions  specific  prohibitions  against  aid 
to  railroads,  canals  and  telegraph  lines.  Provisions  of  this 
nature  are  found  in  the  Constitutions  of  Illinois,  Montana, 
Minnesota,  New  Mexico,  Utah  and  Wyoming.  In  Illinois, 
however,  $20,000,000  in  State  bonds  are  authorized  for  the 
construction  of  the  Illinois-Michigan  canal, ^  while  in  New  York 
the  Legislature  may  authorize  debts  for  the  improvement  of 
canals  subject  to  popular  approval.  One  State  —  Alabama  — 
expressly  prohibits  the  loaning  of  public  credit  to  any  banking 
company. 

>  Illinois  Constitution,  1870,  Amendment  of  1908;   Illinois  and  Michigan  Canal  separately  sub- 
mitted. 


565 


7.    Statutes    authorizing    Loans  —  Provisions,    Term    of 
Loans  and  Method  of  Payment. 

The  various  State  constitutions  not  only  place  limits  upon 
the  amount  of  montey  that  may  be  borrowed  by  the  State 
Legislature,  but  in  some  cases  stipulate  also  the  provisions  that 
must  be  included  in  each  law  which  authorizes  public  indebted- 
ness. In  this  connection  several  State  constitutions  set  forth 
the  legislative  majority  that  is  required  for  an  act  authorizing 
indebtedness.  In  Alabama  and  Minnesota  a  two-thirds  vote 
of  the  members  of  each  house  must  be  secured,  and  in  Kansas, 
Kentucky,  Virginia,  and  Wisconsin  a  majority  of  the  members 
elected  to  each  house.  In  Delaware  the  requirement  is  three- 
fourths  of  the  members  elected  to  each  house  except  in  the 
case  of  debts  to  supply  casual  deficiencies  of  revenue,  repel 
invasion,  defend  the  State  in  war  or  pay  existing  debts. 

Purpose  of  Debt  to  be  specified  in  Statute.  —  A  common 
provision  in  States  that  require  a  referendum  is  that  each 
statute  authorizing  the  creation  of  indebtedness  in  excess  of  the 
amount  or  purposes  permitted  by  the  constitution  must  specify 
distinctly  some  single  object  or  work  for  which  the  debt  is  to 
be  created  and  also  provide  that  the  money  so  borrowed  shall 
be  used  exclusively  for  such  object  and  for  no  other.^  Several 
other  States  require  that  all  laws  creating  indebtedness  shall  con- 
tain such  provisions.^ 

Provision  for  Payment  of  Interest  and  Principal.  —  Not  only 
must  the  debt  be  authorized  by  a  special  law,  but  in  a  number 
of  the  States  the  Legislature  is  required  to  make  special  pro- 
vision for  the  payment  of  the  interest  and  the  principal  of  the 
State  debt.^  In  part  of  the  States  the  statute  authorizing  the 
borrowing  of  money  must  itself  provide  for  the  levying  of 
an  annual  tax  or  for  some  other  means  sufficient  to  pay  the 
interest  as  it  falls  due  and  the  principal  at  maturity,  with  the 

I  California,  XVI,  1;  Colorado,  XI,  4;  Idaho,  VIII,  1;  Iowa,  VII,  5;  Kansas,  XI,  5,  6;  Min- 
nesota, IX,  5;  New  Jersey,  IV,  Sec.  VI,  4;  New  York,  VII,  4;  North  Dakota,  XIl,  182;  Wash- 
ington, VIII,  3. 

*  Delaware,  VIII,  3;  Georgia,  VII,  Sec.  IV,  1;  Kentucky,  178;  Montana,  XIII,  2;  Nebraska, 
XII,  1;  Oklahoma,  X,  16;  Pennsylvania,  IX,  5;  Wisconsin,  VIII,  6,  7. 

>  Arizona,  IX,  3;  Georgia,  VII,  Sec.  XIII,  1;  Illinois,  IV,  18;  Indiana,  X,  2;  Maryland,  III, 
34;  Nebraska,  XII,  1;  New  York,  VII.  4,  5.  11,  12;  North  Dakota,  XI,  174;  Ohio,  VIII.  7-10; 
Pennsylvania.  IX,  11,  12;  South  Carolina,  X,  11;  South  Dakota,  XI,  1;  Utah,  XIII.  2;  Wash- 
ington, VII,  1. 


566 

additional  requirement  in  several  of  the  States  that  such  pro- 
vision shall  be  irrepealable  until  the  debt  is  paid.  In  the  other 
States  the  statute  authorizing  the  borrowing  of  money  does  not 
necessarily  have  to  include  provisions  for  the  payment  of  the 
interest  and  principal,  but  the  Legislature  must  in  some  other 
definite  manner  make  provision  for  these  matters  by  taxation, 
or  from  general  State  funds  or  from  the  sale  of  public  lands. 
In  most  State  constitutions  the  funds  set  aside  for  the  payment 
of  the  interest  and  principal  of  the  State  debt  shall  be  used 
for  such  purposes  alone  and  shall  not  be  diverted  to  other  uses. 
A  few  of  the  State  constitutions,  including  those  of  California, 
Georgia,  New  Mexico,  New  York,  Pennsylvania,  Ohio  and 
Virginia,  establish  sinking  funds  for  the  purpose  of  paying  off 
the  State  debt.^ 

Length  of  State  Loans.  —  A  further  regulation  is  found  in  a 
number  of  State  constitutions  prescribing  the  duration  of 
permanent  State  loans  varying  from  five  years  in  Wisconsin 
to  seventy-five  in  California.^  Ordinarily  no  set  duration  is 
fixed  in  the  constitutions  for  temporary  loans.  There  are  a  few 
exceptions  to  this  rule,  however,  as  Missouri,  which  provides 
that  a  temporary  loan  to  meet  deficiencies  in  revenue  cannot 
run  for  a  longer  period  than  two  years;  Minnesota  and  Colo- 
rado, which  allow  them  to  run  for  ten  years,  Wisconsin  for 
five,  and  Nebraska  for  thirty  years. 

III.    CONCLUSION. 

The  above  analysis  shows  that  constitutional  restrictions 
upon  State  indebtedness  resulted  from  the  period  of  extensive 
internal  improvements  during  the  nineteenth  century,  and  that 
they  are  practically  universal,  there  being  only  four  States 
which  do  not  place  some  kind  of  limitation  on  the  borrowing 
power  of  the  Legislature.  Although  all  of  the  constitutional 
provisions  of  this  nature  possess  many  points  in  common  there 
is  wide  variation  as  to  details  and  as  to  the  strictness  of  regu- 
lation. At  one  extreme,  for  example,  stands  the  Constitution 
of  Delaware,  which  permits  the  Legislature  to  borrow  money 

>  California,  XVI,  1;  Georgia,  VII,  Sec.  XIV,  1;   New  Mexico,  IX,  4,  8;   New  York,  VII,  4,  5, 
11,  12;  Ohio,  VIII,  2,  7-11;  Virginia,  XIII,  187. 

*  For  table  showing  period  during  which  State  loans  may  run  see  Appendix  E. 


567 

provided  only  that  a  three-fourths  vote  of  all  members  elected 
to  each  house  is  obtained,  and  the  constitutions  of  States  like 
Indiana,  North  Carolina  and  South  Carolina,  where  the 
amounts  that  may  be  borrowed  for  temporary  or  ordinary' 
purposes  are  not  limited;  and  at  the  other  extreme  is  Louisiana, 
which  permits  no  borrowing  at  all  over  that  necessary  to  repel 
invasion  or  suppress  insurrection. 

A  common  provision  in  debt  limitations  is  that  all  loans 
above  a  certain  fixed  amount  must  be  approved  by  popular 
vote,  which  is  an  example  of  the  early  use  of  the  referendum 
for  ordinary  legislation.  The  amounts  that  may  be  borrowed 
for  casual  deficits  or  temporary^  loans  vary  widely  among  the 
different  States,  ranging  from  $50,000  in  Oregon  to  $1,000,000 
in  States  like  New  York,  Pennsylvania  and  Kansas,  while  a 
few  States  place  no  limitations  at  all  on  the  amounts  that  may 
be  borrowed  for  such  purposes.  As  a  general  practice  also 
there  are  no  limitations  upon  the  amounts  that  may  be  bor- 
rowed to  defend  the  State,  repel  invasion  or  suppress  insurrec- 
tion. There  are  a  few  exceptions  to  this  rule,  however,  as 
Arkansas,  Missouri,  South  Carolina  and  Tennessee  make  no 
provisions  for  loans  for  the  public  defense.  The  constitutions 
almost  unanimously  prohibit  the  States  from  lending  credit  to 
or  becoming  stockholders  in  private  corporations  —  a  type  of 
limitation  which  grew  up  during  the  period  of  reaction  against 
State  aid  to  private  undertakings. 

As  to  recent  tendencies  there  does  not  appear  to  be  any 
marked  change  in  the  direction  of  making  constitutional  debt 
limits  less  rigid,  and  a  comparison  between  early  and  recent 
State  constitutions  shows  only  a  slight  increase  in  the  amounts 
that  can  be  borrowed  at  the  present  time  as  against  those  of  a 
half  century  ago.  In  the  Michigan  Constitution  of  1850,  for 
example,  the  maximum  debt  limit  for  deficits  in  revenue  was 
$50,000;  in  the  new  Constitution  of  1908  the  maximum  is  fixed 
at  $250,000,  and  no  addition  can  be  made  to  this  under  any 
circumstances,  which  seems  to  indicate  that  "there  is  little 
disposition  to  give  the  modern  wealthy  State  more  privileges 
with  respect  to  the  use  of  credit  than  were  given  to  those  of 


568 

the  forties  and  fifties."^  New  Mexico  is  another  example  of  the 
tendency  to  continue  rigid  limitations  on  the  borrowing  power 
of  the  State,  since  the  Constitution  of  1911  prohibits  any  debt 
for  purposes  other  than  those  allowed  in  the  Constitution,  by 
popular  approval  or  otherwise,  if  the  existing  debt  with  certain 
exemptions  would  be  made  thereby  to  exceed  one  per  cent  of 
the  assessed  value  of  property  in  the  State. 

The  tendency  to  restrict  closely  the  borrowing  power  of  the 
State  government  has  its  exceptions,  however,  in  a  few  States 
such  as  California,  New  York,  Illinois,  etc.  In  New  York,  for 
example,  provision  has  been  made  by  constitutional  amend- 
ment for  an  issue  of  bonds  not  exceeding  $50,000,000  for  the 
construction  of  county  and  State  highways,  while  Illinois  has 
authorized  a  $20,000,000  loan  for  the  development  of  the 
Illinois-Michigan  waterway.^  These  instances  of  extensive  bor- 
rowing, nevertheless,  are  exceptions  to  the  rule.  "Looking  at 
the  period  which  has  elapsed  since  the  day  of  internal  improve- 
ments, one  sees  little  evidence  of  any  distinct  movement  to 
make  debt  restrictions  less  rigid.  Here  and  there  changes  have 
been  made  by  increasing  the  duration  of  loans  or  the  amounts 
that  may  be  borrowed,  or  by  occasional  constitutional  amend- 
ments, but  these  are  relatively  few."^ 

According  to  statistics  compiled  by  the  United  States  Bureau 
of  the  Census,  the  highest  per  capita  net  debt  is  in  Massachu- 
setts, where  there  are  no  constitutional  restrictions,  the  per 
capita  amount  being  $23.52  (1915).  This  heavy  indebtedness  is 
misleading  without  a  word  of  explanation,  for  the  Common- 
wealth ha^  undertaken  a  number  of  functions  which  in  other 
States  are  performed  by  the  cities  themselves.  In  1915, 
$55,638,307  of  the  total  net  debt  of  $84,700,601  consisted  of 
indebtedness  which  had  been  incurred  by  the  State  in  providing 
for  the  metropolitan  water  and  sewerage  system,  and  for  parks, 
etc.  If  allowance  is  made  for  this  contingent  indebtedness, 
which  in  reality  belongs  to  the  cities  of  the  metropolitan  dis- 
trict, the  per  capita  net  debt  for  State  purposes  is  only  $8.07, 
instead  of  $23.52  as  recorded  in  the  United  States  census  report, 
thus   indicating  that  it   is   not   the   absence   of  constitutional 

>  Secrist,  41. 

•  Constitution  of  New  York,  VII,  12;   Constitution  of  Illinois,  Amendment  of  1908. 

•  Secriat,  42. 


569 

limitations  alone  that  explains  Massachusetts'  total  net  in- 
debtedness of  $84,700,601.^ 

The  other  States  w^th  relatively  heavy  debts  are  New  York 
and  Rhode  Island,  which  require  a  referendum  for  indebtedness 
beyond  that  allowed  in  the  constitution,  the  per  capita  net 
debts  of  these  States  being  $12.73  and  $10.27  respectively. 
Next  in  order  are  Maryland,  with  a  per  capita  debt  of  810.25; 
Virginia,  $11.26;  Louisiana,  $10.99;  California,  $9.16;  and 
Connecticut,  $9.24.  Of  the  latter  States  Connecticut  is  the 
only  one  whose  constitution  does  not  contain  debt  restrictions. 
Thus  it  is  seen  that  exclusive  of  the  debt  for  metropolitan 
purposes  the  per  capita  net  indebtedness  of  Massachusetts  is 
slightly  less  than  that  of  any  of  the  above-mentioned  States. 
The  States  with  the  lowest  per  capita  debts  are  New  Jersey  and 
Pennsylvania,  in  which  the  per  capita  net  debt  is  only  $0.04; 
while  Iowa,  Nebraska,  Oregon  and  South  Dakota  have  no  in- 
debtedness at  all  if  the  sinking  fund  assets  on  hand  are  offset 
against  the  debt  outstanding.^ 

A  comparison  of  the  average  per  capita  net  debts  of  the 
several  groups  of  States  classified  according  to  the  method  of 
restricting  indebtedness  shows  that  those  states  in  which  the 
aggregate  amount  of  indebtedness,  except  for  certain  specified 
purposes,  is  fixed  in  the  constitution  have  the  lowest  average, 
which  is  $2.32  per  capita.  In  Delaware,  Maryland  and  North 
Carolina,  which  have  rather  liberal  provisions,  it  is  $5.87; 
while  in  Massachusetts,  Connecticut,  New  Hampshire  and 
Vermont,  where  there  are  no  constitutional  debt  limits  what- 
ever, the  average  per  capita  indebtedness  is  $5.70.^  No  definite 
conclusions,  however,  •  can  be  drawn  as  to  which  method  of 
limitation  places  the  greatest  restriction  on  indebtedness,  since 
there  is  a  wide  variation  among  the  debts  of  States  with  the 
same  system  of  regulation.  In  fact  it  appears  that  differences 
in  public  wealth,  whether  or  not  the  State  has  financed  local 

»  Total  net  State  debt  of  Massachusetts,  IfllS,       .        .        .     $84,700,601        $23.52  per  capita. 
Net  contingent  debt  (for  metropolitan  sewer,  water,  etc.),  .       55,638,307         15.45  i>er  capita. 


Net  direct  debt  (actual  State  debt) $29,062,294         $8.07  per  capita. 

For  further  explanation  of  Massachusetts  debt  see  Appendix  C. 

'  Figures  are  for  1915  and  are  from  report  of  United  States  Bureau  of  Census,  Financial  Sta- 
tistics of  Cities,  1915,  118-123. 

'  For  table  of  per  capita  net  indebtedness,  see  Appendis  C.  For  table  of  highest  and  lowest 
per  capita  debts  see  Appendix  C. 


570 

improvements,  and  the  ease  with  which  the  constitution  may  be 
amended  so  as  to  authorize  additional  loans  for  special  purposes, 
must  be  taken  into  consideration  in  each  case  where  compari- 
son is  attempted. 


571 


Appendix    A. 


REFERENCES  TO  CONSTITUTIONAL  PROVISIONS  RESTRICT- 
ING STATE   DEBT. 


Alabama,  IV,  93;  XI,  213;  XIII, 

253. 
Arizona,  IX,  3,  5,  7. 
Arkansas,  XII,  12;  XVI,  1-2. 
California,    IV,     31;       XII,     13; 

XVI,  1. 
Colorado,  XI,  1-5. 
Connecticut,  none. 
Delaware,  VIII,  3-4. 
Florida,  IX,  6,  10. 
Georgia,  VII,  Sees.  Ill,  1;  IV,  1; 

VIII,  1;  XIII,  1;  XIV,  1. 
Idaho,  VIII,  1-2;  XII,  3. 
Illinois,  IV,  18,  20;  IX,  13. 
Indiana,  X,  2,  5-7;  XI,  12. 
Iowa,  VII,  1-6;  VIII,  3. 
Kansas,  XI,  5-7. 
Kentucky,  49,  50,  176,  177. 
Louisiana,  46,  58,  324. 
Maine,  IX,  14,  15,  17. 
Maryland,  III,  34. 
Massachusetts,  none.^ 
Michigan,  X,  10-14. 
Minnesota,  IX,  5-8. 
Mississippi,  XIV,  258. 
Missouri,  IV,  44-46. 
Montana,  XIII,  1-4;  V,  38. 


Nebraska,  XII,  1,  3. 

Nevada,     VIII,     9;      IX,    3,    4; 

XVII,  7. 
New  Hampshire,  none. 
New  Jersey,  IV,  Sec.  VI,  3,  4. 
New  Mexico,  IX,  4,  7-9,   14r-15. 
New  York,  VII,  1-5,  10-12. 
North  Carolina,  V,  4. 
North  Dakota,  XI,  174;  XII,  182, 

185. 
Ohio,  VIII,  1-5,   7-11. 
Oklahoma,  X,  14-16,  23-25. 
Oregon,  XI,  7,  8. 
Pennsylvania,  IX,  4-6,  9,  11-12. 
Rhode  Island,  IV,  13. 
South  Carolina,  X,  6,  7,  11. 
South  Dakota,  XI,  1;  XIII,  1-3. 
Tennessee,  II,  31. 
Texas,  III,  49-51. 
Utah,  VI,  31;  XIII,  2;   XIV,  1-2. 
Vermont,  none. 
Virginia,  XIII,  184-185,  187. 
Washington,  VII,  1;  VIII,  1-5. 
West  Virginia,  X,  4,  6. 
Wisconsin,  VIII,  3-9. 
Wyoming,  XVI,  1,  2,  6;  III,  39. 


1  For  the  constitutional  amendment  adopted  in  1918,  see  Appendix  B. 


572 


Appendix    B 


TYPICAL  CONSTITUTIONAL  PROVISIONS. 

Typical  Constitutional  Provisions  prohibiting  Debt  except   for 
Specified  Purposes. 

Michigan  —  Article  X,  Sections  10  to  I4. 

Sec.  10.  The  State  may  contract  debts  to  meet  deficits  in  revenue, 
but  such  debts  shall  not  in  the  aggregate  at  any  time  exceed  two  hundred 
fifty  thousand  dollars.  The  State  may  also  contract  debts  to  repel  in- 
vasion, suppress  insurrection,  defend  the  State  or  aid  the  United  States 
in  time  of  war.  The  money  so  raised  shall  be  applied  to  the  purposes  for 
which  it  is  raised  or  to  the  debts  contracted. 

Sec.  1L  No  scrip,  certificate  or  other  evidence  of  State  indebtedness 
shall  be  issued,  except  for  such  debts  as  are  authorized  in  this  Constitution. 

Sec.  12.  The  credit  of  the  State  shall  not  be  granted  to,  nor  in  aid  of 
any  person,  association  or  corporation. 

Sec.  13.  The  State  shall  not  subscribe  to,  nor  be  interested  in  the 
stock  of  any  company,  association  or  corporation. 

Sec.  14.  The  State  shall  not  be  a  party  to,  nor  be  interested  in  any 
work  of  internal  improvement  .  .  .  except  in  the  improvement  of,  or 
aiding  in  the  improvement  of  the  public  wagon  roads,  in  the  reforestation 
and  protection  of  lands  owned  by  the  State  and  in  the  expenditure  of 
grants  to  the  State  of  land  or  other  property. 

Ohio  —  Article  VIII,  Sections  1  to  5. 

Sec.  1.  The  State  may  contract  debts  to  supply  casual  deficits  or 
failures  in  revenues,  or  to  meet  expenses  not  otherwise  provided  for;  but 
the  aggregate  amount  of  such  debts,  direct  and  contingent,  .  .  .  shall 
never  exceed  $750,000,  and  the  money  arising  from  the  creation  of  such 
debts  shall  be  applied  to  the  purpose  for  which  it  was  obtained  or  to 
repay  the  debts  so  contracted  and  to  no  other  purpose  whatever. 

Sec.  2.  In  addition  to  the  above  limited  power,  the  State  may  contract 
debts  to  repel  invasion,  suppress  insurrection,  defend  the  State  in  war,  or 
to  redeem  the  present  outstanding  indebtedness  of  the  State;  but  the 
money  arising  from  the  contracting  of  such  debts  shall  be  applied  to  the 
purpose  for  which  it  was  raised,  or  to  repay  such  debts,  and  to  no  other 
purpose  whatever;    and  all  debts  incurred  to  redeem  the  present  out- 


573 

standing  indebtedness  of  the  State  shall  be  so  contracted  as  to  be  pay- 
able by  the  sinking  fund,  hereinafter  provided  for,  as  the  same  shall 
accumulate. 

Sec.  3.  Except  the  debts  above  specified  in  sections  one  and  two  of 
this  article,  no  debt  whatever  shall  be  created  by  or  on  behalf  of  the 
State. 

Sec.  4.  The  credit  of  the  State  shall  not  in  any  manner  be  given  or 
loaned  to,  or  in  aid  of,  any  individual  association  or  corporation  what- 
ever; nor  shall  the  State  hereafter  become  a  joint  owner,  or  stockholder 
in  any  company  or  association  .  .  .  formed  for  any  purpose  whatever. 

Sec.  5.  The  State  shall  never  assume  the  debts  of  any  county,  city, 
town  or  township,  or  of  any  corporation  whatever  unless  such  debts  shall 
have  been  created  to  repel  invasion,  suppress  insurrection,  or  defend  the 
State  in  war. 

Massachusetts  —  Amendment  adopted  November  5,  1918. 

Section  1.  The  credit  of  the  Commonwealth  shall  not  in  any  manner 
be  given  or  loaned  to  or  in  aid  of  any  individual,  or  of  any  private  associ- 
ation, or  of  any  corporation  which  is  privately  owned  and  managed. 

Section  2.  The  Commonwealth  may  borrow  money  to  repel  invasion, 
suppress  insurrection,  defend  the  Commonwealth,  or  to  assist  the  United 
States  in  case  of  war,  and  may  also  borrow  money  in  anticipation  of  re- 
ceipts from  taxes  or  other  sources,  such  loan  to  be  paid  out  of  the  revenue 
of  the  year  in  which  it  is  created. 

Section  3.  In  addition  to  the  loans  which  may  be  contracted  as  before 
provided,  the  Commonwealth  may  borrow  money  only  by  a  vote,  taken 
by  the  yeas  and  nays,  of  two-thirds  of  each  house  of  the  General  Court 
present  and  voting  thereon.  The  Governor  shall  recommend  to  the  Gen- 
eral Court  the  term  for  which  any  loan  shall  be  contracted. 

Section  4.  Borrowed  money  shall  not  be  expended  for  any  other  pur- 
pose than  that  for  which  it  was  borrowed  or  for  the  reduction  or  discharge 
of  the  principal  of  the  loan. 

Typical  Constitutional  Provisions  requiring  a  Referendum  for 
Creation  of  Debt. 

Illinois  —  Article  IV,  Sections  18,  20. 

Sec.  18 the  State  may  to  meet  casual  deficits  or  failures  in 

revenues  contract  debts,  never  to  exceed  in  the  aggregate  two  hundred  and 
fifty  thousand  dollars,  and  moneys  thus  borrowed  shall  be  applied  to  the 
purpose  for  which  they  were  obtained,  or  to  pay  the  debt  thus  created,  and 
to  no  other  purpose;  and  no  other  debt,  except  for  the  purpose  of  repel- 
ling invasion,  suppressing  insurrection  or  defending  the  State  in  war  .  .  , 
shall  be  contracted,  unless  the  law  authorizing  the  same  shall,  at  a  general 
election,  have  been  submitted  to  the  people  and  have  received  a  majority 
of  the  votes  cast  for  members  of  the  General  Assembly  at  such  election. 


574 

The  General  Assembly  shall  provide  for  the  pubUcation  of  said  law  for 
three  months,  at  least,  before  the  vote  of  the  people  shall  be  taken  upon 
the  same;  and  provision  shall  be  made,  at  the  time,  for  the  payment  of 
the  interest  annually,  as  it  shall  accrue,  by  a  tax  levied  for  the  purpose, 
or  from  other  sources  of  revenue,  which  law  .  .  .  shall  be  irrepealable 
until  such  debt  be  paid:  And  provided  further  that  the  law  levying  the 
taji  shall  be  submitted  to  the  people  with  the  law  authorizing  the  debt  to 
be  contracted. 

Sec.  20.  The  State  shall  never  pay,  assume  or  become  responsible 
for  the  debts  or  liabilities  of,  or  in  any  manner  give,  loan  or  extend  its 
credit  to,  or  in  aid  of,  any  pubUc  or  other  corporation,  association  or 
individual. 

New  York  — Article  VII,  Sections  1,2,3,  4,  12. 

Sec.  1.  The  credit  of  the  State  shall  not  in  any  manner  be  given  or 
loaned  to  or  in  aid  of  any  individual,  association  or  corporation. 

Sec.  2.  The  State  may  to  meet  casual  deficits  or  failures  in  revenues, 
or  for  expenses  not  provided  for,  contract  debts;  but  such  debts,  direct 
or  contingent,  singly  or  in  the  aggregate,  shall  not  at  any  time  exceed  one 
million  of  dollars;  and  the  moneys  arising  from  the  loans  creating  such 
debts  shall  be  applied  to  the  purpose  for  which  they  were  obtained  or  to 
repay  the  debt  so  contracted,  and  to  no  other  purpose  whatever. 

Sec.  3.  In  addition  to  the  above  limited  power  to  contract  debts,  the 
State  may  contract  debts  to  repel  invasion,  suppress  insurrection  or 
defend  the  State  in  war;  but  the  money  arising  from  the  contracting  of 
such  debts  shall  be  applied  to  the  purpose  for  wliich  it  was  raised  .  .  . 
and  to  no  other  purpose  whatever. 

Sec.  4.  Except  the  debts  specified  in  sections  two  and  three  of  this 
article  no  debts  shall  be  hereafter  contracted  by  or  in  behalf  of  this  State, 
unless  such  debt  shall  be  authorized  by  law  for  some  single  work  or  object 
to  be  distinctly  specified  therein;  and  such  law  shall  impose  and  provide 
for  the  collection  of  a  direct  annual  tax  to  pay  and  discharge  the  prin- 
cipal of  such  debt  within  fifty  years  from  the  time  of  the  contracting 
thereof.  No  such  law  shall  take  effect  until  it  shall,  at  a  general  elec- 
tion, have  been  submitted  to  the  people,  and  have  received  a  majority 
of  all  votes  cast  for  and  against  it  at  such  election.  .  .  .  The  money 
arising  from  any  loan  or  stock  creating  such  debt  or  liabihty  shall  be 
appUed  to  the  work  or  object  specified  in  the  act  authorizing  such  debt 
or  liability,  or  for  the  payment  of  such  debt  or  liability,  and  for  no  other 
purpose  whatever.  No  such  law  shall  be  submitted  to  be  voted  on  within 
three  months  after  its  passage  or  at  any  general  election  when  any  other 
law,  or  any  bill,  shall  be  submitted  to  be  voted  for  or  against. 

Sec.  12.  A  debt  or  debts  of  the  State  may  be  authorized  by  law  for 
the  improvement  of  highways.  .  .  .  The  aggregate  of  the  debts  author- 
ized by  this  section  shall  not  at  any  one  time  exceed  the  siun  of  fifty 


575 

millions  of  dollars.  .  .  .  None  of  the  provisions  of  the  fourth  section 
of  this  article  shall  apply  to  debts  for  the  improvement  of  highways 
hereby  authorized. 

Oklahoma  —  Article  X,  Sections  I4-I6  and  23-25. 

Sec.  14.  Except  as  required  by  the  enabling  act,  the  State  shall  not 
assume  the  debt  of  any  county,  municipal  corporation,  or  political  sub- 
division of  the  State,  unless  such  debt  shall  have  been  contracted  to 
defend  itself  in  time  of  war,  to  repel  invasion,  or  to  suppress  insurrec- 
tion. 

Sec.  15.  The  credit  of  the  State  shall  not  be  given,  pledged  or  loaned 
to  any  individual,  company,  corporation  or  association,  municipality, 
or  political  subdivision  of  the  State;  nor  shall  the  State  become  an  owner 
or  stockholder  in  nor  make  donation  by  gift,  subscription  to  stock,  by 
tax  or  otherwise,  to  any  company,  association  or  corporation. 

Sec.  16.  All  laws  authorizing  the  borrowing  of  money  by  and  on 
the  behalf  of  the  State,  county,  or  other  political  subdi\dsion  of  the  State, 
shall  specify  the  purpose  for  which  the  money  is  to  be  used,  and  the 
money  so  borrowed  shall  be  used  for  no  other  purpose. 

Sec.  23.  The  State  may  to  meet  casual  deficits  or  failure  in  revenues, 
or  for  expenses  not  provided  for,  contract  debts;  but  such  debts,  direct 
and  contingent,  singly  or  in  the  aggregate,  shall  not  at  any  time  exceed 
four  hundred  thousand  dollars,  and  the  monej^s  arising  from  the  loans 
creating  such  debts  shall  be  applied  to  the  purpose  for  which  they  were 
obtained  or  to  repay  the  debts  so  contracted,  and  to  no  other  purpose 
whatever. 

Sec.  24.  In  addition  to  the  above  limited  power  to  contract  debts, 
the  State  may  contract  debts  to  repel  invasion,  suppress  insurrection,  or 
to  defend  the  State  in  war;  but  the  money  arising  from  the  contracting 
of  such  debts  shall  be  applied  to  the  purpose  for  which  it  was  raised,  or 
to  repay  such  debts,  and  to  no  other  purpose  whatever. 

Sec.  25.  Except  the  debts  specified  in  sections  twenty-three  and 
twenty-four  of  this  article,  no  debts  shall  hereafter  be  contracted  by  or 
on  behalf  of  the  State,  unless  such  debts  shall  be  authorized  by  law  for 
some  work  or  object,  to  be  distinctly  specified  therein;  and  such  law 
shall  impose  and  provide  for  the  collection  of  a  dhect  annual  tax  to  pay, 
and  sufiicient  to  pay,  the  interest  on  such  debt  as  it  falls  due  and  also 
to  pay  and  discharge  the  principal  of  such  debt  ^^•ithin  twenty-five  years 
from  the  time  of  the  contracting  thereof.  No  such  law  shall  take  effect 
until  it  shall,  at  a  general  election,  have  been  submitted  to  the  people  and 
have  received  a  majority  of  all  the  votes  cast  for  and  against  it  at  such 
election.  On  the  fmal  passage  of  such  bill  in  either  house  of  the  Legis- 
lature, the  question  shall  be  taken  by  the  yeas  and  nays  to  be  duly  entered 
on  the  journals  thereof.  .  .  . 


576 


Typical  Constitutional  Provisions  prescribing  Aggregate  Amount 

OF  Debt. 

Maine  —  Article  IX,  Sections  I4,  15,  17. 

Sec.  14.  The  credit  of  the  State  shall  not  be  dkectly  or  indirectly 
loaned  in  any  case.  The  Legislature  shall  not  create  any  debt  or  debts, 
liability  or  liabilities,  on  behalf  of  the  State,  which  shall  singly,  or  in 
the  aggregate,  with  pre\ious  debts  and  liabilities  hereafter  incurred  at 
any  one  time,  exceed  three  hundred  thousand  dollars,  except  to  suppress 
insurrection,  to  repel  invasion,  or  for  purposes  of  war;  but  this  amend- 
ment shall  not  be  construed  to  refer  to  any  money  that  has  been  or  may 
be  deposited  ■v\'ith  this  State  by  the  United  States,  or  to  any  fund  which 
the  State  shall  hold  in  trust  for  any  Indian  tribe. 

Sec.  15.  The  State  is  authorized  to  issue  bonds  payable  within  twenty- 
one  years,  at  a  rate  of  interest  not  exceeding  six  per  cent,  a  year,  payable 
semi-annually,  which  bonds  or  their  proceeds  shall  be  devoted  solely 
toward  the  reimbursement  of  the  expenditures  incurred  by  the  cities, 
towns  and  plantations  of  the  State  for  war  purposes  during  the  Re- 
bellion. .  .  .  The  issue  of  bonds  hereby  authorized  shall  not  exceed  in 
the  aggregate  three  million  five  hundred  thousand  dollars,  and  this  amend- 
ment shall  not  be  construed  to  permit  the  credit  of  the  State  to  be  directly 
or  indirectly  loaned  in  an}''  other  case  or  for  any  other  purpose. 

Sec.  17.  The  Legislature  may  authorize  the  issuing  of  bonds  not  ex- 
ceeding two  million  dollars  in  amount  at  any  one  time,  payable  within 
forty-one  years,  .  .  .  which  bonds  or  their  proceeds  shall  be  devoted 
solely  to  the  building  and  maintaining  of  State  highwaj's;  provided, 
however,  that  bonds  issued  and  outstanding  under  authority  of  this 
section  shall  never  in  the  aggregate  exceed  two  million  dollars.  .  .  . 

Oregon  —  Article  XI,  Sections  6,  7,  8. 

Sec.  6.  The  State  shall  not  subscribe  to  or  be  interested  in  the  stock 
of  any  company,  association,  or  corporation. 

Sec.  7.  The  Legislative  Assembly  shall  not  lend  the  credit  of  the 
State  nor  in  any  manner  create  any  debt  or  liabilities  which  shall  singly  or 
in  the  aggregate  with  previous  debts  or  liabilities  exceed  the  sum  of  fifty 
thousand  dollars,  except  in  case  of  war  or  to  repel  invasion  or  suppress 
insurrection  or  to  build  or  maintain  permanent  roads;  and  the  Legislative 
Assembly  shall  not  lend  the  credit  of  the  State  nor  in  any  manner  create 
any  debt  or  liabilities  to  build  and  maintain  permanent  roads  which  shaU 
singly  or  in  the  aggregate  with  previous  debts  or  liabihties  incurred  for 
that  purpose  exceed  two  per  cent  of  the  assessed  valuation  of  all  property 
in  the  State;  and  every  contract  of  indebtedness  entered  into  or  assumed 
by  or  on  behalf  of  the  State  in  violation  of  the  pro\dsions  of  this  section 
shall  be  void  and  of  no  effect.    (The  foregoing  section  was  proposed  as  an 


577 

amendment  by  initiative  petition  and  adopted  by  vote  of  the  peoi)le  on 
November  5,  1912  by  a  vote  of  59,542  to  43,447.) 

Sec.  8.  The  State  shall  never  assume  the  debts  of  any  countj',  town 
or  other  corporation  whatever,  unless  such  debts  shall  have  l^een  created 
to  repel  invasion,  suppress  insurrection  or  defend  the  State  in  war. 

Typical   Constitutional   Provisions   permitting  Aggregate   Debt 
Limit  to  be  exceeded  by  Popular  Referendum. 

New  Jersey  —  Article  IV,  Section  VI. 

Sec.  VI,  Par.  3.  The  credit  of  the  State  shall  not  be  directly  or  in- 
directly loaned  in  any  case. 

Sec.  VI,  Par.  4.  The  Legislature  shall  not,  in  any  manner,  create  any 
debt  or  debts,  liability  or  liabilities,  of  the  State  which  shall  singly  or  in 
the  aggregate  with  any  previous  debts  or  liabilities,  at  im.y  time  exceed 
one  hundred  thousand  dollars,  except  for  purposes  of  war,  or  to  repel 
invasion,  or  to  suppress  insurrection,  unless  the  same  shall  be  authorized 
by  a  law  for  some  single  object  or  work  to  be  distinctly  specified  therein; 
which  law  shall  provide  the  ways  and  means  exclusive  of  loans,  to  pay 
the  interest  of  such  debt  or  liability  as  it  falls  due,  and  also  to  pay  and 
discharge  the  principal  of  such  debt  or  liability  within  thirty-five  years 
from  the  time  of  the  contracting  thereof,  and  shall  be  irrepealable  until 
such  debt  or  liability,  and  the  interest  thereon,  are  fully  paid  and  dis- 
charged, and  no  such  law  shall  take  effect  until  it  shall,  at  a  general  elec- 
tion have  been  submitted  to  the  people  and  have  received  the  sanction  of 
a  majority  of  all  the  votes  cast  for  and  against  it  at  such  election;  and  all 
money  to  be  raised  by  the  authority  of  such  law  shall  be  applied  only  to 
the  specific  object  stated  therein,  and  the  payment  of  the  debt  thereby 
created.  This  section  shall  not  be  construed  to  refer  to  any  money  that 
has  been,  or  may  be,  deposited  mth  this  State  by  the  government  of  the 
United  States. 

Rhode  Island  —  Article  IV,  Section  13. 

Sec.  13.  The  General  Assembly  shall  have  no  power,  hereafter,  with- 
out the  express  consent  of  the  people,  to  incur  debts  to  an  amount  exceed- 
ing fifty  thousand  dollars,  except  in  time  of  war,  or  in  case  of  insurrec- 
tion or  invasion;  nor  shall  they  in  any  case,  without  such  consent,  pledge 
the  faith  of  the  State  for  the  payment  of  the  obligations  of  others.  This 
section  shall  not  be  construed  to  refer  to  any  money  that  may  be  deposited 
with  this  State  by  the  government  of  the  United  States. 


578 


Appendix    C 


TABLES   SHOWING   PER   CAPITA  DEBTS   OF  STATES,    1915.i 
Indebtedness  of  States  which  -prohibit  Debt  except  for  Specified  Purposes. 


Gross  Debt,  1915. 

Net  Debi 

,  1915. « 

State. 

Total. 

Per 
Capita. 

Total. 

Per 
Capita. 

Alabama,         .... 

$14,365,059 

$6  35 

$13,352,055 

$5  90 

Arkansas, 

2,043,393 

1  21 

1,202,641 

71 

Colorado, 

5,172,725 

5  73 

3,631,837 

4  02 

Florida, 

3,152,617 

3  72 

601,567 

71 

Georgia, 

6,678,185 

2  40 

6,534,202 

2  35 

Indiana, 

1,870,176 

67 

1,051,106 

38 

Louisiana, 

19,943,529 

11  24 

19,497,722 

10  99 

Michigan, 

6,972,048 

2  33 

6,905,655 

2  30 

Minnesota, 

2,800,469 

1  27 

2,603,000 

1  18 

Missouri, 

7,570,351 

2  24 

7,308,339 

2  17 

Ohio,      . 

34,197,017 

6  81 

5,202,264 

1  04 

Pennsylvania, 

1,699,657 

21 

312,016 

04 

Texas,    . 

5,017,955 

1   19 

4,077,500 

96 

Virginia, 

24,929,471 

11  62 

24,142,898 

11  26 

West  Virginia, 

1,151,987 

86 

- 

- 

Wisconsin, 

2,278,637 

93 

2,251,000 

91 

Average, 

- 

- 

- 

$2  80 

hidebtedness  of  States  which  prohibit  Debt  except  for  Specified  Purposes 
unless  allowed  by  Referendum. 


Illinois,  ..... 

$3,236,900 

$0  54 

$2,066,350 

$0  35 

Iowa, 

503,379 

23 

- 

- 

Kentucky, 

5,666,611 

2  40 

2,431,845 

1  03 

New  Mexico,  . 

2,643,496 

6  91 

1,028,252 

2  69 

New  York, 

162,503,119 

16  49 

125,461,557 

12  73 

Oklahoma, 

7,237,117 

3  50 

6,519,810 

3  15 

South  Carolina, 

6,554,318 

4  12 

5,399,793 

3  40 

Washington,    . 

3,128,181 

2  25 

293,024 

21 

Average, 

$2  94 

*  Tables  compiled  from  Financial  Statistics  of  States,  1915,  United  States  Bureau  of  Census, 
1916.  Table  24,  118-119. 

2  Net  debt  consists  of  outstanding  indebtedness  less  sinking  fund  assets. 


579 


Indebtedness  of  States  in  which  Aggregate  Amount  of  Debts  is  fixed  in  Con- 
stitution unless  exceeded  by  Referendum. 


Gross  Debt,  1915. 

Net  Debt,  1915. « 

State. 

Total. 

Per 
Capita. 

Total. 

Per 
Capita. 

California, 
Idaho,    . 
Kansas, 
Montana, 
New  Jersey,     . 
Rhode  Island, 
Wyoming, 

$28,428,843 
2,493,251 

984,290 
2,542,003 

594,003 
8,988,743 

268,511 

$10  14 

6  37 

55 

5  89 

21 

15  20 

1  60 

$25,666,382 

1,451,193 

80,361 

1,271,899 

116,000 

6,072,046 

111,000 

$9   16 

3  71 

04 

2  95 

04 

10  27 

66 

Average, 

• 

- 

- 

- 

$3  83 

Indebtedness  of  States  in  which  Aggregate  Amount  of  Debt  is  fixed  in  Con- 
stitution. 


Arizona,           .... 

$3,319,048 

$13  65 

$910,972 

$3  75 

Maine,   . 

2,328,479 

3  05 

2,135,467 

2  80 

Nebraska, 

900,456 

72 

- 

- 

Nevada, 

962,670 

9  75 

680,000 

6  89 

North  Dakota, 

771,228 

1  10 

548,366 

78 

Oregon, 

244,665 

32 

- 

- 

South  Dakota, 

701,713 

1  05 

- 

- 

Utah,      . 

2,889,866 

6  98 

1.790,000 

4  33 

Average, 

- 

- 

- 

$2  32 

Indebtedness  of  States  in  which  Certain  Conditions  must  be  complied  with. 


Delaware,        .... 
Maryland,       .... 
North  Carolina, 

$873,493 

19,699,594 

9,035,808 

$4  16 

14  72 

3  87 

$746,815 

13,719,576 

8,878,600 

$3  56 

10  25 

3  80 

Average, 

- 

- 

- 

$5  87 

Procedure  required  for  incurring  debt :  — 

Delaware:   Three-fourths  legislative  majority. 
Maryland:   Special  tax  to  be  levied. 
North  Carolina:   Special  tax  to  be  levied. 


>  Net  debt  consists  of  outstanding  indebtedness  less  sinking  fund  assets. 


580 


Indebtedness  of  States  in  which  the  only  Limitations  are  against  lending 
Credit  to  Private  Enterprise. 


Gross  Debt,  1915. 

Net  Debt,  1915. « 

State. 

Total. 

Per 
Capita. 

Total. 

Per 
Capita. 

Mississippi,     .... 
Tennessee,       .... 

$5,146,390 
15,076,992 

$2  72 
6  69 

$5,126,292 
14,878,534 

$2  70 
6  60 

Average, 

- 

- 

- 

$4  65 

Indebtedness  of  States  in 

which  there  are  no  Constitutional  Restrictions. 

Massachusetts,  * 
Connecticut,   . 
New  Hampshire, 
Vermont, 

$128,279,247 

11,128,774 

2,578,370 

855,247 

$35  62 
9  29 
5  89 
2  36 

$29,062,294 

11,064,000 

1,961,117 

370,893 

$8  07* 
9  24 
4  48 
1  02 

Average, 

- 

- 

$5  70 

Anahjsis  of  Massachusetts'  State  Debt. 


Gross  State  debt:  ^  — 

Total, 

Per  capita. 
Total  net  State  debt: 

Total, 

Per  capita. 
True  net  State  debt: ' 

Total, 

Per  capita. 


$128,279,247  00 

35  62 

84,700,601  00 

23  52 

29,062,294  00 

8  07 


1  Net  debt  consists  of  outstanding  indebtedness  less  sinking  fund  assets. 

2  Net  debt  of  Massachusetts  consists  of  gross  debt  less  sinking  fund  assets,  and  is  exclusive  of 
the  debt  for  water,  sewers,  parks  and  abolition  of  grade  crossings  in  the  Metropolitan  District. 

3  Consists  of  total  outstanding  debt  of  State  for  State  and  metropolitan  district  purposes  plus 
sinking  funds. 

*  Consists  of  total  outstanding  debt  of  State  less  sinking  fund  assets. 

'  This  is  the  true  State  debt  for  State  purposes,  and  consists  of  the  net  State  debt  less  the  in- 
debtedness carried  for  the  metropolitan  water,  sewer  and  park  systems,  which  should  be  credited 
to  cities. 


581 


States  with  Highest  Per  Capita  Debt. 


State. 

Per  Capita 
Net  Debt. 

State. 

Per  Capita 
Net  Debt. 

New  York, 

Rhode  Island, 

Maryland, 

Virginia,      .... 

Louisiana,  .... 

California, 

$12  73 
10  27 

10  25 

11  26 
10  99 

9  16 

Connecticut, 

Massachusetts :  — 

Total  net  State  debt. 
Net  debt  for  State  pur- 
poses alone. 

$9  24 
r    23  52 

1      8  07 

States  vxith  Lowest  Per  Capita  Debt. 


South  Dakota, 
West  Virginia, 
Nebraska,  . 
Oregon, 


Iowa, 

New  Jersey, 
Pennsylvania, 
Kansas, 


$0  04 
04 
04 


I 


582 


Appendix    D 


AMOUNT     OF     INDEBTEDNESS     PERMITTED     IN     STATES 
WHICH  FIX  DEBT  LIMITS  IN  THEIR  CONSTITUTIONS. 

Not  to  be  exceeded  except  for  Specified  Purposes. 


State. 

Amount  allowed 
by  Constitution. 

Arizona, 
Maine,  . 
Nebraska, 
Nevada, 
North  Dakota, 
Oregon, 
South  Dakota, 
Utah,     . 

$350,000 
300,000 
100,000 
300,000 
200,000 
50,000 
100,000 
-1 

May  be  exceeded  by  Referendum. 

California, 

$300,000 

Idaho,    . 

2,000,000 

Kansas, 

1,000,000 

Montana, 

100,000 

New  Jersey,   . 

100,000 

Rhode  Island, 

50,000 

Wyoming, 

-2 

'  1}'2  per  cent  of  assessed  valuation.        '  Amount  not  greater  than  taxes  of  current  year. 


583 


Appendix    E 


TERM  OF  LOANS. 


State. 


Duration  of 
Loans  (Years). 


California, 
Colorado, 
Idaho,   . 
Iowa,     . 
Kentucky, 
Maryland, 
Minnesota, 
Missouri, 
Nevada, 
New  Jersey, 
New  Mexico, 
New  York, 
Oklahoma, 
South  Carolina, 
South  Dakota, 
Washington,  . 
Wisconsin, 


75 
10  to  15 
20 
20 
30 
15 
10 
13 
20 
35 
50 
50 
25 
40 
10 
20 
5 


584 


BIBLIOGRAPHY. 

Beard,  Charles  A.  American  Government  and  Politics,  706-708.  New 
York,  1917. 

Bryce,  James.    The  American  Commonwealth  (1911  ed.),  II,  630-633. 

Massachusetts.  Annual  Report  of  the  Auditor  of  the  Commonwealth, 
1915.    Boston,  1916.    (pp.  vii  and  vJii  especially.) 

Secrist,  Horace.  An  Economic  Analysis  of  the  Constitutional  Restric- 
tions upon  Public  Indebtedness  in  the  United  States.  Bulletin  of 
the  University  of  Wisconsin,  No.  637.  Madison,  1914.  (A  compre- 
hensive analysis  of  the  subject.) 

Stimson,  Frederic  J.  Federal  and  State  Constitutions  of  the  United 
States,  284-287.    Boston,  1908. 

United  States.  Bureau  of  Census.  Financial  Statistics  of  States,  1915, 
118-121.    Washington,  1916. 

Bureau  of  Census.     Wealth,  Debt  and  Taxation,  1913  (2  vols.). 

Washington,  1915. 


BULLETIN   No.   16 


THE    SELECTION   AND    RETIREMENT 
OF   JUDGES 


CONTENTS. 


Prefatory  Note, 589 

Introduction, 591 

First  Plan:    Appointment  by  the  Governor  and  Retirement  by  Im- 
peachment, or  Removal  by  the  Governor  upon  the  Address  of 
Both  Houses  of  the  Legislature  —  the  Massachusetts  Plan,       .  593 
Second  Plan:    Selection  and  Retirement  of  Judges  by  Popular  Vote,  594 
Third  Plan:    Election  of  the  Chief  Justice  for  a  Short  Term  of  Years, 
the  Appointment  of  Associate  Judges  by  hun,  and  Retirement 
Elections  for  Associate  Judges  at  Stated  Intervals,        .       .       .  608 
Fourth  Plan:    Election  of  the  Chief  Justice  for  a  Short  Term,  the 
Appointment  of  Associate  Judges  by  him  without  Any  Provision 
for  the  Retirement  of  Associate  Judges  by  Popular  Vote,     .        .617 
Bibliography, ^^9 


i 


PREFATORY  NOTE. 


This  pamphlet  is  taken  from  Bulletin  IV,  A,  of  the  American 
Judicature  Society's  bulletins,  and  was  prepared  under  the 
direction  of  the  Board  of  Directors  of  that  organization,  con- 
sisting of  the  following:  Harry  Olson,  Chairman,  Chief  Justice 
of  the  Municipal  Court  of  Chicago;  Woodbridge  N.  Ferris, 
Governor  of  Michigan;  James  Parker  Hall,  Dean  of  the  Uni- 
versity of  Chicago  Law  School;  Edward  W.  Hinton,  Member 
of  the  Faculty  of  the  University  of  Chicago  Law  School;  Fred- 
erick Bruce  Johnstone,  of  the  Chicago  Bar;  Albert  M.  Kales, 
of  the  Chicago  Bar  and  Professor  of  Law  in  the  Harvard  Law 
School;  Frederick  W.  Lehmann,  of  the  St.  Louis  Bar,  former 
President  of  the  American  Bar  Association,  former  Solicitor 
General  of  the  United  States;  Nathan  William  MacChesney, 
of  the  Chicago  Bar,  President  of  the  Illinois  Commission  on 
Uniform  State  Laws;  Roscoe  Pound,  Carter  Professor  of  General 
Jurisprudence  and  Dean  of  the  Harvard  Law  School;  John 
H.  Wigmore,  Dean  of  the  Northwestern  University  School  of 
Law;  John  B.  Winslow,  Chief  Justice  of  the  Wisconsin  Supreme 
Court;  and  Herbert  Harley,  Secretary  of  the  American  Judica- 
ture Society.  The  parts  here  printed  constitute  the  final  re- 
vision of  matter  that  was  put  in  tentative  form  and  sent  out 
to  several  hundred  of  the  associate  members  of  the  Judicature 
Society  located  in  all  parts  of  the  United  States.  A  large  pro- 
portion of  these  associate  members  sent  in  extensive  criticisms 
of  the  matter  which  had  been  received  by  them,  and  from 
those  criticisms  and  suggestions  the  draft  which  is  now  sub- 
mitted was  revised.  The  Judicature  Society  also  had  direct 
investigations  made  by  Mr.  Harley,  more  particularly  of  the 
methods  of  the  selection  and  retirement  of  judges  in  Wisconsin. 
Several  members  of  the  Board  had  a  close  and  intimate  knowl- 
edge of  the  methods  of  selecting  and  retiring  judges  in 
the  city  of  Chicago  and  the  State  of  Illinois.     Those  parts  of 


590 

the  present  bulletin  which  state  conditions  in  Wisconsin  and 
Chicago  may  be  regarded  as  direct  testimony  by  witnesses 
who  are  personally  familiar  with  the  conditions  spoken  of. 

It  should  be  noted  that  this  bulletin  is  a  close  analysis  of 
facts  from  which  all  personal  opinion  and  all  bias  in  favor  of 
any  one  scheme  over  another  is  carefully  eliminated.  The 
third  plan  set  forth  is  to  a  slight  extent  discussed  argumen- 
tatively.  The  reason  for  this  is  solely  because  it  was  being 
presented  as  a  possible  alternative  to  the  method  of  electing 
judges  for  short  terms  which  obtains  generally  in  the  Mis- 
sissippi Valley. 


591 


THE  SELECTION  AND  RETIREMENT  OF 
JUDGES. 


INTRODUCTORY  —  FOUR  PLANS. 

From  the  suggestions  received  from  the  members  of  the  So- 
ciety's Council  with  regard  to  the  First  Draft  of  an  Act  to 
establish  a  Model  Court  for  a  Metropolitan  District  (Bulletin 
IV),  three  types  of  opinion  stand  out  clearly. 

First.  —  From  certain  Eastern  States,  where  judges  are  ap- 
pointed by  the  Governor  and  hold  during  good  behavior,  sub- 
ject only  to  impeachment  and  possibly  also,  as  in  Massachusetts, 
to  legislative  removal,  we  find  a  strong  belief  expressed  that  this 
is  a  satisfactory  method  of  selecting  and  retiring  judges  and 
should  not  be  disturbed. 

Second.  —  In  the  Middle  West,  where  the  plan  of  election  for 
short  terms  prevails,  we  are  told  that  the  people  generally  hold 
an  ineradicable  belief  favorable  to  the  selection  and  retirement 
of  judges  by  popular  vote  —  that  no  scheme  for  the  selection 
and  retirement  of  judges  need  be  put  forward  which  does  not 
embrace  these  features. 

Third.  —  More  particularly  from  the  larger  metropolitan  dis- 
tricts of  the  Middle  West,  where  the  plan  of  the  election  of 
judges  for  short  terms  has  been  in  force  during  a  period  of  rapid 
and  enormous  growth,  we  have  found  a  strongly  expressed  and 
widespread  dissatisfaction  with  the  results  obtained,  coupled 
at  the  same  time  with  a  lack  of  enthusiasm  for  appointment  by 
the  Governor. 

For  the  purpose  of  satisfying  each  of  these  types  of  opinion 
the  directors  have  had  plans  prepared  for  the  selection  and 
retirement  of  judges. 

The  first  plan  adopts  the  general  principle  of  appointment 
by  the  Governor  of  judges  to  hold  during  good  behavior  and 
subject  to  retirement  only  by  impeachment  or  by  legislative 
removal.     This  is  the  Massachusetts  plan. 


592 

The  second  plan  is  that  of  the  selection  and  retirement  of 
judges  by  popular  vote  and  their  retirement  also  by  impeach- 
ment, legislative  action  and  action  of  the  judicial  council  for 
cause  shown  and  after  hearing.  In  dealing  with  this  plan  the 
directors  have  endeavored  to  analyze  the  causes  for  dissatis- 
faction with  it  and  to  consider  what  improvements  can  be  made 
without  a  departure  from  the  principle  of  selection  and  retire- 
ment by  election. 

The  third  plan  is  to  accommodate  a  community  that  is  dis- 
satisfied with  the  selection  of  judges  by  election,  but  does  not 
care  for  appointment  by  the  Governor  and  which  still  regards 
the  popular  control  of  judges  by  exposing  them  to  a  retirement 
election  essential.  This  plan  calls  for  the  election  of  the  chief 
justice  at  short  intervals  —  say  every  four  years  —  and  the 
selection  of  the  associate  judges  by  the  appointment  of  the 
chief  justice.  The  associate  judges  are  to  hold  for  an  indefi- 
nite period,  subject,  however,  to  retirement  in  any  one  of  the 
following  ways:  (1)  impeachment;  (2)  legislative  removal; 
(3)  removal  by  the  judicial  council  for  cause  shown  and  after 
a  hearing;  (4)  at  regular  intervals  of  three,  nine  and  eighteen 
years  from  the  date  of  appointment  each  judge  is  required  to 
submit  to  a  retirement  election  at  which  the  only  question  is 
"Shall  the  judge  be  continued  in  office?"  If  the  judge  be 
retired  his  place  is  then  to  be  filled  by  the  appointment  of  the 
chief  justice. 

The  fourth  plan  is  the  same  as  the  third,  except  that  the 
retirement  election  is  eliminated,  leaving  the  associate  judges 
to  be  appointed  by  the  chief  justice  subject  to  retirement  by 
impeachment,  legislative  removal  and  removal  by  the  judicial 
council  for  cause  shown  and  after  a  hearing.^ 

1  The  various  elements  of  these  plans  may  be  combined  in  a  great  variety  of  ways.  For 
instance,  it  is  now  proposed  in  California  that  the  constitution  be  amended  to  provide  for 
selecting  judges  in  the  following  manner:  appointment  by  the  Governor  to  the  office  of  justice 
of  the  Supreme  Court  and  of  the  District  Courts  of  Appeal  for  the  term  of  twelve  years,  and 
to  the  office  of  judge  of  the  Superior  Court  for  the  term  of  six  years;  appointments  to  be  made 
in  July  to  take  effect  the  first  day  of  January;  appointees  to  be  subject  to  confirmation  by  the 
electors  of  the  State,  of  the  district,  or  of  the  county  (or  city)  respectively.  An  appointee  who 
fails  of  confirmation  is  ineligible  for  appointment  to  fill  the  vacancy  thus  created.  The  submis- 
sion of  the  name  shall  be  at  the  general  State  election  following  appointment  and  shall  be  in 
the  following  form:  "Shall  appointment  of  [name  of  person  appointed]  as  [title  of  office]  be 
confirmed?"  with  the  words  "yes"  and  "no"  and  appropriate  spaces  for  the  voter's  mark. 
(See  Cal.  Sen.  Constitutional  Amendment  No.  1.)  The  judicial  recall  now  in  effect  in  Cali- 
fornia will  not  be  disturbed  if  this  measure  is  adopted. 


593 


First    Plan. 

APPOINTMENT  BY  THE  GOVERNOR  AND  RETIREMENT  BY 
IMPEACHMENT,  OR  REMOVAL  BY  THE  GOVERNOR  UPON 
THE  ADDRESS  OF  BOTH  HOUSES  OF  THE  LEGISLATURE 
-THE  MASSACHUSETTS  PLAN. 

This  plan  follows  the  provision  of  the  Massachusetts  Con- 
stitution, Ch.  Ill,  Art.  I.  A  similar  provision  appears  in  the 
English  Judicature  Act  of  1873,  Sec.  5. 

It  is  often  overlooked  that  the  English  judges  are  subject  to 
be  removed  not  only  by  impeachment  but  by  the  mere  address 
of  both  houses  of  Parliament.  Such  an  address  may  be  made 
upon  the  mere  majority  vote  of  each  house.  No  trial  is  required 
and  no  cause  for  removal  need  be  shown.  This,  in  fact,  places 
every  English  judge  at  the  mercy  of  the  ministers  in  power  so 
far  at  least  as  the  vote  of  the  House  of  Commons  is  concerned. 
Since  the  Lord  Chancellor  is  a  member  of  the  cabinet  in  power 
he  has  a  very  real  disciplinary  authority  over  every  English 
judge,  for  he  is  in  a  position  to  bring  the  conduct  of  any  judge 
before  the  cabinet  and  to  use  great  influence  in  favor  of  taking  a 
vote  in  the  House  of  Commons  to  recall  the  judge.  This  is  the 
English  equivalent  for  the  popular  recall  of  judges.  It  is  a 
recall  initiated  by  the  executive,  which  in  this  case  includes  the 
Lord  Chancellor,  who  is  the  head  of  the  judiciary,  subject  only 
to  the  veto  of  the  House  of  Lords. 

The  Illinois  Constitution  permits  the  General  Assembly  for 
cause  entered  on  the  journal,  upon  due  notice  and  opportunity 
of  defense,  to  remove  from  oflBce  any  judge  upon  the  concur- 
rence of  three-fourths  of  all  the  members  elected  of  each  house. 


594 


Second    Plan. 

SELECTION  AND   RETIREMENT  OF  JUDGES    BY  POPULAR 

VOTE. 

The  plan  of  selection  and  retirement  of  judges  by  popular 
vote,  as  now  worked  out  in  a  large  proportion  of  States,  means 
the  election  of  judges  for  a  term  of  years.  At  the  end  of  each 
term  there  is  in  form  at  least  an  opportunity  to  retire  the  sitting 
judge  if  he  is  a  candidate  for  re-election  and  also  an  opportunity 
to  select  another  judge  by  popular  vote. 

This  system  has  been  in  force  for  many  years  in  many  of  our 
largest  States.  There  is  a  suJBBcient  volume  of  dissatisfaction 
with  the  results  to  warrant  a  careful  analysis  and  scrutiny  of 
this  method  of  selecting  and  retiring  judges. 

Election  for  a  Term  is  not  only  a  Method  of  Selecting 
Judges,  but  also  a  Method  of  Recalling  them  by 
Popular  Vote. 

When  a  place  on  the  bench  is  vacant  by  the  death  or  resigna- 
tion of  a  judge,  or  his  refusal  to  run  again,  the  election  presents 
a  mode  of  selection  simply.  When  the  sitting  judge  seeks 
another  term,  the  first  and  principal  question  usually  is:  "  Shall 
he  be  retired  from  office  by  popular  vote?  "  If  so,  a  question  of 
selection  arises,  since  some  one  must  be  put  in  his  place. 

No  analysis  for  the  causes  of  dissatisfaction  with  the  plan  of 
electing  judges  for  terms  of  years  can  be  made  without  keeping 
distinct  the  operation  of  the  election  as  a  selecting  process  and 
its  function  as  a  retiring  process.  The  performance  of  the  se- 
lective function  must  be  analyzed  by  itself  and  causes  for 
dissatisfaction  with  it  ascertained  and  if  possible  eliminated. 
Then  the  performance  of  the  retiring  function  must  be  analyzed 
by  itself  and  the  causes  for  dissatisfaction  with  it  ascertained 
and  if  possible  eliminated. 


595 


Selection  of  Judges. 

In  Actual  Operation  the  Elective  System  does  not  enable  the 
Electorate  to  exercise  the  Selective  Function. 

Knowledge  of  the  fitness  of  individuals  to  perform  the  diffi- 
cult functions  of  the  office  of  judge  must  be  known  before 
anything  like  selection  is  possible. 

How  can  an  electorate  of  a  hundred  thousand  and  upwards 
out  of  a  population  of  half  a  million  and  upwards  have  any 
sufficient  knowledge  upon  which  to  make  a  selection  from 
among  the  lawyers  of  persons  to  fill  judgeships? 

It  is  obviously  impossible  for  an  electorate  of  any  such  size, 
or  even  different  parts  of  such  an  electorate,  to  have  any  col- 
lective idea  of  those  among  the  lawyers  whom  it  wishes  to  act 
as  judges.  It  is  even  more  clear  that  the  electorate  can  have 
no  collective  idea  of  the  qualifications  of  different  lawyers  for 
exercising  the  judicial  function.  It  would  be  a  problem  for  a 
single  individual  who  had  an  extensive  knowledge  of  lawyers 
and  who  observed  them  closely  for  a  considerable  period  in  the 
practice  of  their  profession. 

We  have  gotten  past  thinking  that  any  lawyer  can  be  a 
judge.  In  metropolitan  centers  particularly  we  have  come  to 
the  view  that  to  be  a  successful  and  efficient  judge  requires  a 
highly  trained  professional  expert  The  electorate  would  not 
think  of  undertaking  to  select  at  a  general  election  the  engineer 
who  is  to  design  a  bridge  upon  which  thousands  of  the  popu- 
lation each  day  must  pass  in  safety.  It  is  quite  as  absurd  for 
an  electorate  to  attempt  a  selection  of  the  very  special  talents 
which  are  required  in  a  judge  in  passing  upon  the  rights  to  life, 
liberty  and  property  of  thousands  of  citizens. 

Furthermore,  lawyers  who  are  willing  to  become  candidates 
for  a  judgeship  have,  as  a  general  rule,  no  real  popular  following 
in  an  electorate  of  any  considerable  size.  Few  judges,  after 
they  have  been  on  the  bench,  have  any  such  popular  following 
that  they  can  be  said  to  be  a  popular  choice.  The  position  of 
a  single  judge  in  a  district  containing  one  hundred  thousand 
voters  and  upwards  is  ordinarily  too  inconspicuous  to  enable 
any  man  who  is  willing  to  occupy  the  place  to  secure  a  popular 
following.     A  lawyer  or  a  judge  who  secures  a  real  hold  upon 


596 

the  majority  of  a  numerous  electorate  will  inevitably  be  led  to 
a  candidacy  for  offices  of  greater  political  importance  than  a 
judgeship. 

What  happens  when  the  Electorate  is  given  the  Task  of  Selecting 
Judges,  which  it  cannot  possibly  perform,  is  this:    in  Order 
to  avoid  Complete  Chaos  some  Sort  of  a  De  Facto  Method 
of  Appointment  is  devised. 
For  instance,  in  Wisconsin,  they  have  developed  a  de  facto 
method  of  appointment  by  the  lawyers  and  the  Governor.    The 
way  the  election  of  judges  works  out  in  Wisconsin  is  thus  de- 
scribed by  Herbert  Harley,  secretary  of  the  American  Judicature 
Society,  as  a  result  of  his  personal  investigations: 

A  strong  tradition  has  been  built  up  in  Wisconsin  of  re- 
electing sitting  judges.  This  means,  and  the  actual  fact  is, 
that  vacancies  on  the  bench  occur  almost  wholly  by  death  or 
resignation  by  the  incumbent.  When  this  happens  the  bar 
(and  that  means  the  leaders  among  the  bar)  at  once  set  about 
to  fill  the  office.  The  qualifications  of  various  lawyers  are  dis- 
cussed in  a  semi-public  manner.  There  is  sufficient  decorum 
so  that  candidates  do  not  come  forward  personally  to  advance 
their  claims.  A  bar  primary  is  then  held,  all  the  candidates 
having  a  fair  chance.  The  bar,  as  a  whole,  accepts  the  result 
and  regardless  of  party,  supports  the  winner.  The  actual  power 
of  appointment  for  the  unexpired  term  rests  with  the  Governor. 
He,  however,  is  expected  to,  and  customarily  does  in  fact,  ap- 
point the  man  recommended  by  the  bar.  When  election  day 
comes  around  the  judge  so  appointed  is  supported  by  the  bar 
regardless  of  party,  because  he  was  originally  the  nominee  of 
the  bar  and  because  he  is  a  sitting  judge.  He  is  regularly  there- 
after supported  at  elections  until  he  dies  or  resigns.  So  strong 
is  the  tradition  and  feeling  in  favor  of  electing  and  re-electing 
judges  who  have  been  appointed  originally  in  the  manner  de- 
scribed, that  sitting  judges  will  prevail  even  against  candidates 
who  are  admittedly  abler  lawyers.  The  system  of  retaining 
judges  in  office  during  good  behavior  has  been  found  by  the 
people  of  Wisconsin  to  be  worth  more  than  the  replacement 
once  in  a  while  of  a  satisfactory  man  with  one  who  might  and 
who  probably  would  do  better.     A  very  complete  account  of 


597 

the  growth  of  the  tradition  will  be  found  in  the  address  of  Chief 
Justice  Winslow  of  the  Wisconsin  Supreme  Court,  reported  in 
the  minutes  of  the  Kansas  State  Bar  Association  for  1914. 

Whatever  pride  there  may  be  in  such  a  system  of  selecting 
judges,  it  is  a  pride  in  the  way  a  so-called  plan  of  popular 
election  has  been  developed  into  an  appointment  by  the  leading 
lawyers  of  the  district,  with  the  concurrence  of  the  Governor. 

On  the  other  hand,  in  Chicago,  where  there  is  a  typical  long 
ballot,  and  the  parties  are  well  organized  and  powerful,  the 
appointing  power  is  lodged  with  the  leaders  of  the  party  or- 
ganization. These  men  appoint  the  nominees.  They  did  it 
openly  and  with  a  certain  degree  of  responsibility,  under  the 
convention  system.  They  do  it  now  less  openly  and  with  less 
responsibility  under  our  compulsory  and  partisan  primary 
system.  If  one  wishes  to  test  the  soundness  of  these  conclu- 
sions let  him  inquire  his  way  to  a  judgeship  in  such  a  district 
or  listen  to  the  experiences  of  the  men  who  have  found  their 
way  to  a  judgeship  or  have  tried  to  obtain  the  office  and  failed. 
In  almost  every  case  the  story  is  one  of  preliminary  service  to 
the  organization,  recognition  by  the  local  organization  chief  and 
through  him  recognition  and  appointment  of  a  nomination  by 
the  governing  board  of  the  party  organization.  Those  who  do 
not  go  by  this  road  do  not  get  in.  The  voter  only  selects  which 
of  two  or  three  appointing  powers  he  prefers.  Whichever  way 
he  votes  he  merely  approves  an  appointment  by  party  organi- 
zation leaders. 

Whether  the  So-called  Elective  System  for  the  Selection  of  Judges 
is  Successful  or  Unsuccessful  depends  upon  what  Sort  of 
a  De  Facto  Appointing  Poioer  develops  out  of  it. 

Obviously  the  best  method  of  appointment  is  one  which  is 
legal,  conspicuous,  subject  directly  to  the  electorate  and  most 
interested  in  and  responsible  for  the  due  administration  of 
justice.  So  far  as  the  de  facto  method  of  appointment  which 
develops  out  of  an  elective  system  approaches  these  attributes 
it  will  be  successful.  So  far  as  it  departs  from  them  it  will  be 
unsuccessful. 

Thus  in  Wisconsin  the  appointing  power  is  regarded  as  suc- 
cessful.    The  reason  is  that  so  far  as  the  lawyers  participate 


598 

in  the  appointment  intelligence  is  developed  regarding  the 
qualifications  of  candidates  and  the  lawyers  are  on  the  whole 
interested  in  the  due  administration  of  justice.  The  fact  that 
the  Governor  must  approve  makes  the  appointment  to  some  ex- 
tent conspicuous,  responsible,  and  subject  to  the  electorate. 

On  the  other  hand,  in  Chicago  the  de  facto  appointive  sys- 
tem may  be  regarded  as  less  successful,  particularly  under  the 
present  compulsory  party  primary.  This  is  because  the  ap- 
pointing power  in  the  political  leaders  is  obscure,  not  subject 
directly  to  the  electorate  and  is  little  interested  in  or  responsible 
for  the  due  administration  of  justice. 

Can  anything  be  done  to  improve  the  Selection  of  Judges  while 
still  adhering  to  the  Form  of  Selection  by  Popular  Vote? 

It  may  be  answered  that  all  efforts  to  confer  the  function  of 
selecting  upon  the  electorate  of  a  metropolitan  district  are 
futile. 

This  is  because  the  essential  requirement  for  the  selection  of 
judges  is  a  knowledge  of  the  qualifications  of  lawyers  for  the 
office  and  this  knowledge  is  beyond  the  reach  of  the  electorate 
as  a  whole  and  is  beyond  the  reach  of  any  considerable  part  of 
the  electorate. 

It  follows  that  there  can  be  no  election  machinery  which  will 
enable  the  people  of  large  districts  directly  to  select  judges, 
since  no  plan  has  been  devised  which  will  give  to  the  electorate 
the  necessary  information  as  to  the  qualifications  of  lawyers. 

In  Chicago  the  compulsory  partisan  primary  has  entirely 
failed  to  confer  upon  the  electorate  any  power  to  select  judges. 
The  fact  is  that  the  political  leaders  control  the  primaries  just 
as  they  controlled  the  conventions,  only  with  less  responsibility. 

There  are  many  who  sincerely  believe  that  the  electorate  can 
choose  its  judges  provided  they  are  elected  only  at  special 
elections  where  a  judicial  ballot  is  used  which  omits  all  desig- 
nation of  parties  and  upon  which  the  names  of  candidates  are 
placed  by  petition  only  and  the  name  of  each  candidate  is 
rotated  upon  the  ballot  so  that  it  will  appear  an  equal  number 
of  times  in  every  position.  The  object  of  such  legislation  is  to 
restore  a  choice  to  the  electorate  by  depriving  the  party  or- 
ganizations  of   a  predominant   influence   in  judicial   elections. 


599 

The  means  adopted  to  deprive  the  party  of  its  influence  is  to 
take  from  it  the  use  of  the  party  circle  and  the  party  cohimn. 
It  may  safely  be  predicted  of  such  legislation  that  it  will  not 
cause  judges  to  be  the  actual  choice  of  the  electorate,  nor  will 
it  eliminate  the  influence  of  the  party  leaders  in  judicial  elec- 
tions. 

The  supposition  is  that  if  the  influence  of  the  party  leaders 
can  be  eliminated  the  electorate  will  necessarily  make  a  real 
choice.  But  the  electorate  does  not  fail  to  choose  simply  be- 
cause the  party  leaders  have  taken  that  choice  from  it.  On 
the  contrary,  the  party  leaders  rule  because  the  electorate 
regularly  goes  to  the  polls  too  ignorant  politically  to  make  a 
choice  of  judges.  That  ignorance  is  due  to  the  fact  that  the 
ofiice  of  judge  is  inconspicuous  and  the  determination  of  who 
are  qualified  for  the  office  is  usually  difficult,  even  when  an 
expert  in  possession  of  all  the  facts  makes  the  choice.  The 
proposed  method  of  election  does  not  in  the  least  promise  to 
eliminate  the  fundamental  difficulty  of  the  political  ignorance 
of  the  electorate.  If,  therefore,  it  succeeded  in  eliminating 
the  influence  of  the  party  organization  the  question  would  still 
remain:  "  Who  would  select  the  judges?  "  There  is  no  reason  to 
believe  that  the  electorate  would  make  any  real  choice.  Elec- 
tors would  be  just  as  politically  ignorant  as  they  were  before. 
They  would  be  just  as  little  fitted  for  making  a  choice  as  they 
were  before.  The  elimination  of  extra-legal  government  by 
party  leaders  does  not  give  to  the  electorate  at  large  the  knowl- 
edge required  to  vote  intelligently.  Who,  then,  will  select  the 
judges?  The  newspapers  might  have  a  larger  influence,  but 
they  would  probably  be  very  far  from  exercising  a  controlling 
influence  or  uniting  in  such  a  way  as  to  advise  and  direct  the 
majority  of  the  voters  how  to  vote  for  a  number  of  judges. 
Special  cliques  would  each  be  too  small  to  control  a  choice  and 
combinations  would  be  too  diflScult  to  make.  The  basis  of 
choice  would,  therefore,  be  utterly  chaotic.  There  could  be 
neither  responsibility  nor  intelligence  in  the  selection  of  judges. 
The  results  reached  would  depend  upon  chance  or  upon  irre- 
sponsible and  temporary  combinations.  With  every  lawyer 
allowed  to  put  up  his  name  by  petition  and  chance  largely 
governing  the  result,  the  prospect  is  hardly  encouraging. 


600 

There  is  no  reason  to  believe,  however,  that  any  such  dis- 
organized method  of  choice  would  be  tolerated.  The  most 
potent  single  power  in  elections  would  end  it.  That  power 
would  be  the  present  type  of  party  organization.  It  would  be 
put  to  greater  trouble  in  advising  and  directing  the  politically 
ignorant  how  to  vote,  because  it  would  have  been  deprived  of 
the  party  circle  and  party  column.  But  the  advice  and  direc- 
tion could  and  would  be  given  and  followed.  Each  party  or- 
ganization would  have  its  slate  of  candidates.  Each  would 
prepare  separate  printed  lists  of  its  slate  to  be  distributed  at 
the  polls  and  the  voter  would  for  the  most  part,  as  now,  take 
the  list  of  that  organization  he  was  loyal  to  or  feared  the  most, 
and  vote  the  names  upon  it  no  matter  where  they  appeared 
upon  the  ballot.  Thus  the  appointment  of  judges  by  the  party 
leaders  would,  after  perhaps  a  period  of  chaos  and  readjust- 
ment, again  appear.  Perhaps  it  would  be  even  stronger  as  a 
result  of  reaction  and  deliverance  from  the  chaotic  conditions 
which  it  relieved. 

Some  think  that  separate  judicial  elections  make  for  selec- 
tion by  the  people,  but  the  political  party  leaders  control  the 
nominations  for  these  elections  as  they  control  the  nominations 
for  other  elections.  The  fact  that  the  election  is  separate  from 
other  elections  gives  the  electorate  more  opportunity  to  study 
the  qualifications  of  the  nominees  put  up  for  their  vote.  The 
issue  with  regard  to  the  selection  of  judges  is  not  complicated 
with  the  issues  common  to  national,  state  and  local  elections 
generally.  At  the  same  time  it  cannot  be  said  that  the  added 
opportunity  which  the  electorate  has  to  study  the  qualifications 
of  candidates  presented  is  in  fact  availed  of  to  any  such  extent  as 
enables  the  electorate  as  a  whole,  or  even  any  considerable  body 
of  it,  to  vote  with  intelligence.  The  fact  is  that  such  elections  are 
attended  by  comparatively  few  voters  and  the  opportunity  for 
political  party  leaders  and  political  party  machines  to  do  the 
greater  part  of  the  voting  is  frequently  taken  advantage  of. 

Improvement  in  our  methods  of  selecting  judges  while  still 
adhering  to  the  popular  election  can  only  be  had  by  making 
the  de  facto  appointing  power  more  conspicuous  and  by  this 
means  more  responsible  to  the  electorate  and  more  interested 
in  the  due  administration  of  justice. 


601 

We  may  promote  the  de  facto  appointing  power  of  the  party 
leaders  by  an  abandonment  of  non-partisan  primaries  and  elec- 
tion, the  compulsory  partisan  primary  and  election,  and  a 
return  to  the  convention  system  of  nomination. 

We  may  conceivably  promote  a  greater  participation  in  the 
appointment  of  judges  by  bar  associations.  This  may  be  done 
by  permitting  bar  association  nominees,  selected  at  bar  as- 
sociation primaries,  to  be  placed  upon  the  official  ballot  as  bar 
association  candidates  and  permitting  them  to  run  as  such,  al- 
though nominated  by  a  regular  political  party. 

We  may  move  in  the  direction  of  vesting  a  de  facto  appoint- 
ing power  in  the  Governor,  by  permitting  nominations  to  be 
made  by  him  —  the  names  of  the  nominees  being  placed  upon 
the  official  ballot  as  "Governor's  Nominees."  This  is  the  plan 
now  being  put  forward  in  New  York  State. 

A  de  facto  appointing  power  in  the  Governor  may  be  pro- 
moted by  giving  him  the  power  to  fill  by  appointment  any  unex- 
pired term,  even  though  it  have  several  years  to  run. 

It  cannot,  however,  be  predicted  that  any  of  these  schemes 
will  give  much  satisfaction.  Indeed,  the  defects  of  each  under 
particular  circumstances  are  very  plain. 

Where  the  judges  are  to  sit  regularly  in  the  principal  metro- 
politan district  of  the  State  the  giving  to  the  Governor  of  any 
power  of  appointment  will  be  objectionable,  as  infringing  the 
home-rule  principle. 

So  in  a  large  metropolitan  district  where  the  lawyers  number 
five  hundred  or  more  and  membership  in  the  local  bar  associa- 
tion does  not  include  most  of  the  profession,  if  the  bar  primary 
be  participated  in  by  all  the  lawyers  the  result  may  be  extremely 
disappointing.  If  the  bar  primary  is  participated  in  only  by 
the  members  of  the  association,  it  would  be  objected  to  on  the 
ground  that  it  conferred  an  important  special  privilege  upon 
the  few.  If  each  one  of  several  bar  associations  nominated, 
the  host  and  confusion  of  bar  association  nominees  might  be- 
come quite  intolerable. 

Whether  nominations  by  convention  can  ever  again  be  ac- 
cepted is  problematical. 

Of  the  methods  suggested  for  improving  the  de  facto  appoint- 
ing power  which  arises  under  an  elective  system  it  can  only  be 


602 

said  that  they  tend  in  the  only  possible  direction  for  producing 
more  satisfactory  results,  since  they  secure  a  de  facto  appointing 
power  which  is  more  conspicuous,  more  responsible  and  more 
interested  in  the  due  administration  of  justice. 

Retirement  of  Judges  by  Popular  Vote. 

In  Actual  Operation  the  Elective  System  either  is  not  used  to 
retire  Judges,  or  if  it  he  used  the  Retirement  is  usually  in 
Fact  by  Political  Leaders  or  the  Result  of  a  Popular   Up- 
heaval with  Regard  to  Issues  ivhich  have  no  Relation  to  the 
Conduct  of  the  Judicial  Office.     Only  in  the  Rarest  Case  is 
an   Election   used   to   express   Popular   Dissatisfaction  iviih 
a  Judge. 
In  Wisconsin  the  habit  of  the  people  to  return  sitting  judges 
at  every  election  so  long  as  they  will  serve  is  so  strong  that 
actual  retirement  by  election  is  practically  eliminated.     The 
tenure  is  de  facto  during  good  behavior  with  no  retirement  by 
popular  vote  unless  conceivably  a  real  popular  dissatisfaction 
with  the  judge  should  arise.     But  such  a  real  popular  dissatis- 
faction is  theoretical  merely.     It  does  not  arise  and  in  fact 
probably  will  not  arise  so  long  as  judges  are  selected  by  an 
efficient  appointing  power. 

Thus  in  Wisconsin,  where  the  elective  system  is  said  to  work 
well,  we  find  the  retirement  of  judges  by  popular  vote  has 
been  de  facto  eliminated  for  the  time  being  at  least. 

In  Chicago,  on  the  other  hand,  where  the  elective  system  falls 
far  short  of  giving  satisfaction,  we  find  that  elections  fre- 
quently result  in  the  retirement  of  judges  through  failure  to 
be  re-elected.  It  is  clear,  however,  that  such  retirement  is  not 
a  disgrace,  but  invariably  mere  political  misfortune.  Judges 
who  are  not  re-elected  are  frequently  soon  after  elected  to  fill 
a  vacancy  on  the  bench  if  they  can  be  induced  again  to  become 
candidates.  This  might  well  lead  us  to  suspect,  what  is  indeed 
the  fact,  that  judges  by  the  elective  plan  are  not  once  in  many 
years  retired  by  the  electorate  because  there  is  any  real  popular 
dissatisfaction  with  them,  or  even  because  the  candidate  run- 
ning against  them  is  the  better  man. 

The  divergence  of  theory  and  practice  could  hardly  be  greater. 


603 

In  theory  the  periodical  election  of  judges  is  supposed  to  afford 
an  outraged  people  a  chance  to  cast  from  the  bench  one  un- 
worthy to  administer  judicial  power.  What  in  fact  happens  is 
this:  Our  judges  are  not  subject  to  a  recall  merely,  but  to  a 
progressive  series  of  recalls.  They  are  now  subject  to  recall  by 
the  party  organization  leaders,  who  may  refuse  a  nomination 
at  the  time  of  an  election.  Instances  are  not  wanting  where 
this  has  been  done.  If  the  judge  secures  the  nomination  he 
may  be  recalled  by  a  wing  of  the  organization  knifing  him  at 
the  polls.  He  may  be,  and  frequently  is,  recalled  by  reason  of 
an  upheaval  upon  national  issues  which  has  nothing  to  do  with 
his  exercise  of  judicial  power.  In  the  case  so  rare  that  it  is 
difiicult  for  lawyers  with  a  considerable  experience  at  the  bar 
to  remember  it,  a  judge  is  actually  recalled  because  of  popular 
dissatisfaction  with  him.  In  a  word,  in  order  to  give  the  people 
a  chance  on  a  special  occasion  to  recall  a  judge  because  he  is 
undesirable,  we  have  exposed  the  judge  to  recalls  from  the  most 
objectionable  sources,  and  made  his  tenure  dependent  upon 
conditions  which  have  nothing  whatever  to  do  with  his  quali- 
fications as  a  judge. 

If  the  election  be  at  a  special  judicial  election  separate  from 
other  elections,  there  is  less  danger  of  the  retirement  of  judges 
by  reason  of  an  upheaval  on  national.  State  or  local  issues.  On 
the  other  hand,  since  the  vote  at  such  election  is  light,  political 
organizations  wield  a  larger  influence  in  it  and  the  retirement 
of  a  judge  is  more  likely  to  be  affected  by  the  influence  of  par- 
tisan party  politics.  For  instance,  a  wing  of  the  party  or- 
ganization may  be  able  more  easily  to  defeat  a  judge  for  re- 
election. 

The  only  suggestion  put  forward  by  the  directors  for  the 
improvement  of  the  retirement  of  judges  by  popular  election 
is  to  separate  the  issue  of  retirement  from  that  of  selection. 
That  means  the  separation  of  the  election  which  selects  from 
the  election  which  retires. 

While  the  electorate  cannot  possibly  exercise  the  selecting 
function  it  may  conceivably  exercise  the  retiring  function,— 
i.e.,  it  may  say  that  it  does  not  want  a  particular  individual  to 
act  as  judge.  Yet  when  that  issue  is  complicated  with  the 
apparent  issue  of  selection  all  chance  of  the  effective  exercise 


604 

of  the  retiring  function  is  lost.  Some  will  vote  on  the  basis  that 
they  are  retiring  or  keeping  in  office  a  judge.  Others  will  vote 
on  the  basis  that  they  are  selecting  a  judge.  Some  will  vote 
against  a  judge  to  retire  him,  and  others  will  vote  against  him 
in  the  efTort  to  elect  another.  Some  will  vote  for  the  judge  in 
order  to  vote  against  the  retirement.  Others  will  vote  for  him 
because  they  wish  to  select  him  as  a  judge.  When  half  a  dozen 
or  more  judicial  offices  are  to  be  filled  at  an  election  the  con- 
fusion of  issues  must  prevent  any  satisfactory  exercise  of  a 
retiring  function. 

The  moment  we  separate  the  election  which  selects  from  the 
election  which  retires  it  necessarily  follows  that  no  judge  can 
be  selected  until  a  vacancy  occurs.  Hence,  every  judge  when 
selected  must  hold  upon  a  tenure  terminable  only  by  his  death 
or  resignation  or  retirement  by  impeachment,  legislative  action 
or  by  popular  vote. 

The  separate  retirement  election  should  place  before  the 
voter  only  one  question,  "Shall  the  judge  be  continued  in 
office?" 

The  retirement  election  may  be  required  at  the  end  of  a 
certain  term  of  years  of  service,  —  for  instance,  at  the  end  of 
four,  twelve  and  twenty  years  from  the  date  of  selection.  Thus 
the  first  submission  is  after  a  short  probationary  term.  If  the 
judge  is  not  retired  at  this  election  he  holds  for  the  longer  term 
of  eight  years.  After  the  third  submission  of  his  name  he  is  no 
longer  subject  to  any  retirement  election,  but  only  to  a  pro- 
vision for  retirement  upon  reaching  an  age  limit  and  upon  half 
or  full  pay. 

OA  the  other  hand,  the  judge  may  be  subject  to  a  retirement 
election  initiated  at  any  time  by  the  petition  of  a  percentage 
of  voters.  This  is  usually  referred  to  as  the  recall  of  judges 
by  popular  vote. 

The  plan  of  submission  at  regular  intervals  of  four,  eight 
and  twenty  years  is  believed  to  be  the  better  plan  since  it  holds 
before  the  judge  the  certainty  of  a  submission  to  the  electorate 
without  placing  upon  any  one  the  disagreeable  leadership  in- 
volved in  circulating  a  petition  for  a  recall  election.  At  the 
same  time  it  protects  the  judge  from  the  attacks  of  the  moment 
and  gives  the  community  time  for  a  sober  second  thought  be- 


605 

fore  a  judge  is  condemned.  More  important  still,  it  protects 
the  judge  from  the  constant  threats  of  recall  by  powerful 
political  organization  leaders.  These,  if  permitted,  may  be 
used  to  interfere  seriously  with  the  exercise  of  the  judicial 
function. 

Conclusion. 

Our  Analysis  of  what  the  Selection  and  Retirement  of  Judges 
by  Popular  Election  really  means,  with  a  Consideration  of 
what  Improvements  may  he  made  loithout  Disturbing  the 
Fundamental  Principle  of  Election,  leads  to  the  Following 
Conclusion. 

First.  —  The  plan  of  popular  election  and  retirement  of 
judges  should  be  abandoned  since  it  does  not  produce  and  can- 
not be  made  to  produce  selection  by  the  people.  The  attempt 
to  confer  upon  the  people  the  selecting  function  too  often  pro- 
duces selection  by  political  party  leaders  and  retirement  by 
them,  —  a,  de  facto  method  of  selection  and  of  retirement  which 
is  most  objectionable  because  it  is  extra-legal,  obscure,  not 
easily  subject  to  the  electorate,  and  too  little  interested  in  and 
responsible  for  the  due  administration  of  justice. 

Second.  —  If,  however,  the  selection  and  retirement  of  judges 
by  popular  election  be  insisted  upon,  the  following  plan  is  the 
least  objectionable. 

The  chief  justice  and  associate  judges  should  be  selected  by 
popular  vote  to  hold  for  an  indefinite  tenure  and  until  retired 
in  any  one  of  the  following  ways:  (1)  By  impeachment;  (2) 
by  retirement  by  the  Legislature;  (3)  by  retirement  by  popular 
vote  at  a  special  retirement  election  held  periodically  at  the 
end  of  four,  twelve  and  twenty  years  from  the  date  of  selection, 
at  which  retirement  election  the  only  question  presented  to  the 
voter  should  be:    "Shall  the  judge  be  continued  in  office?" 

One  very  obvious  advantage  of  this  plan  over  the  present 
method  of  election  for  terms  frequently  short  is  tliat  it  will 
at  once  reduce  the  number  of  judicial  elections  even  where  a 
large  number  of  judges  must  be  originally  selected  by  election. 
No  judge  will  be  selected  until  there  is  a  vacancy  created  by 
death,  resignation  or  retirement  in  one  of  the  ways  specified. 


606 

In  short,  there  will  be  no  election  to  select  a  judge  until  by- 
reason  of  a  vacancy  such  course  becomes  necessary. 

Under  the  present  system  of  election  for  a  definite  term  there 
is  a  constant  round  of  elections  being  ground  out  when  there 
is  no  popular  call  whatever  for  ninety  per  cent,  of  them. 

The  reduction  in  the  number  of  elections  for  the  purposes  of 
selection  will  result  in  greater  intelligence  being  concentrated 
by  the  electorate  upon  the  problem  of  selection  when  it  is 
presented.  The  issue  of  retirement  also  will  be  isolated  com- 
pletely from  the  issue  of  selection  so  that  the  former  may  be 
presented  with  the  utmost  directness  and  simplicity  to  the 
voter. 

Third.  —  Where  it  becomes  necessary  in  accordance  with  the 
above  plan  to  select  a  new  judge  at  an  election,  what  method 
of  nominating  shall  be  used? 

The  possibilities  are  as  follows:  — 

1.  Nomination  by  convention  or  directly  by  a  county  cen- 
tral committee. 

2.  By  compulsory  partisan  primaries. 

3.  By  nonpartisan  primary  and  election. 

4.  Single  election  with  preferential  voting. 

5.  Nomination  by  the  Governor 

6.  Nomination  by  bar  associations. 

None  of  these  do  or  can  result  in  selection  by  the  people. 
Selection  by  the  people  is  impossible.  All  the  above  methods 
tend  to  place  a  de  facto  appointing  power  in  the  hands  of 
somebody. 

Nominations  by  convention  or  county  central  committees 
tend  to  place  the  nominating  power  in  the  hands  of  the  party 
political  leaders.  They  make  such  nominations  conspicuous 
and  to  a  corresponding  extent  responsible.  The  party  political 
leaders  in  convention  will  frequently  nominate  men  of  stand- 
ing and  character  when  such  men  would  receive  no  support, 
or  very  little  support,  from  the  same  political  party  leaders  in 
the  obscurity  and  confusion  of  a  nomination  by  compulsory 
party  primaries. 

Nominations  by  compulsory  partisan  primaries  not  only  tend 
to  place  the  nominating  power  in  the  hands  of  political  party 


607 

leaders,  but  the  appointing  power  so  conferred  is  obscure  and 
less  responsible  and  results  on  the  whole  in  poorer  nominations 
than  the  convention  system. 

The  third  and  fourth  methods  of  nonpartisan  nominations 
and  elections  result  either  in  chance,  as  the  principal  factor 
in  the  selection  of  the  judge,  in  which  case  there  is  no  respon- 
sibility whatever  for  the  selection,  or  it  results  in  selection  by 
political  party  leaders,  which  is  quite  as  obscure  and  irrespon- 
sible, if  not  more  so,  than  the  compulsory  party  primary. 

The  fifth  method  of  nomination  by  the  Governor  is  con- 
spicuous and  responsible,  but  is  far  from  an  ideal  method  of 
appointment.  For  a  metropolitan  district  in  particular,  it 
violates  the  home-rule  principle. 

The  sixth  method  of  nomination  by  bar  associations  may 
turn  out  well  or  ill,  depending  upon  the  size  of  the  bar  and  the 
character  and  influence  of  its  leaders. 

With  the  above  conclusions  before  the  community,  or  its 
representatives,  let  each  community,  or  its  representatives, 
select  what  method  of  nomination  it  prefers.  The  directors 
recommend  none  because  the  results  which  may  be  obtained 
are  too  uncertain  and  depend  too  much  on  local  conditions. 


608 


Third    Plan. 

ELECTION  OF  THE  CHIEF  JUSTICE  FOR  A  SHORT  TERM  OF 
YEARS,  THE  APPOINTMENT  OF  ASSOCIATE  JUDGES  BY 
HIM  AND  RETIREMENT  ELECTIONS  FOR  ASSOCIATE 
JUDGES  AT  STATED  INTERVALS. 

Judges  are  not  and  cannot  be  selected  by  Election. 
All  Forms  of  Election  result  in  Appointment.  The 
ONLY  Question  is,  What  is  the  Best  Method  of  Ap- 
pointment? 

The  selection  of  judges  by  popular  election  not  only  does 
not  in  fact  occur,  but  it  is  impossible,  especially  in  a  metro- 
politan district,  that  it  should  ever  occur.  Our  assumption 
that  judges  can  be  selected  at  a  popular  election  is  the  merest 
political  hypocrisy.  All  efforts  to  secure  the  selection  of  judges 
by  the  people  in  such  a  district  result  necessarily  in  some  de 
ct  0  method  of  appointment,  usually  by  the  political  party 
leaders.  In  rare  instances,  as  in  Wisconsin,  it  has  developed 
appointment  by  the  Governor  and  lawyers.  These  views  have 
been  more  fully  set  forth  in  connection  with  the  Second  Plan 
of  providing  for  both  the  selection  and  retirement  of  judges 
by  popular  election.     {Ante,  pages  594  to  605.) 

It  is  a  fundamental  error,  therefore,  to  suppose  that  the 
issue  is  between  the  selection  of  judges  by  appointment  and 
their  selection  by  popular  election.  Judges  are  only  selected 
by  appointment.  The  real  issue,  therefore,  is  between  the  dif- 
ferent methods  of  appointment.  The  real  questions  which  must 
be  settled  are:  "What  is  the  sound  principle  upon  which  to 
create  an  appointing  power  for  the  appointment  of  judges,  and 
how  far  do  our  actual  or  proposed  appointing  powers  conform 
to  such  principle?  " 

The  Attributes  of  a  Proper  Appointing  Power. 

There  should  be  no  difference  of  opinion  as  to  the  attributes 
of  a  proper  appointing  power.  It  should  be  vested  directly 
in  a  legally  constituted  authority.     That  authority  should  be 


I 


609 

conspicuous,  subject  directly  to  the  electorate,  and  in  the  high- 
est degree  interested  in  and  responsible  for  the  due  admin- 
istration of  justice. 

Plan  of  Appointment  by  an  Elected  Chief  Justice  — 
THE  Appointing  Po"wtir. 

The  least  objectionable  method  of  appointment  and  the  one 
which  promises  the  most  is  that  of  conferring  the  appointing 
power  upon  the  chief  justice  of  the  metropolitan  court. 

This  chief  justice  must  be  subject  at  frequent  intervals  to  the 
electorate  both  in  the  matter  of  selection  and  retirement.  That 
means  he  must  be  elected  for  a  comparatively  short  term  — 
say  four  or  six  years.  This  causes  him  to  be  subject  to  retire- 
ment by  popular  vote  at  the  end  of  each  term. 

To  this  might  conceivably  be  added  the  recall  by  popular 
election  initiated  by  petition  at  any  time.  There  may  be  some- 
thing to  justify  this  step  on  the  ground  that  the  power  which 
appoints  judges  and  directs  the  administration  of  justice  by 
the  court  should  be  subject  to  the  widest  possible  control. 
Nevertheless,  the  directors  do  not  recommend  such  a  recall 
provision  for  the  reason  that  they  fear  that  it  would  be  used 
more  constantly  for  the  purpose  of  bringing  political  pressure 
to  bear  upon  the  chief  justice  by  political  party  leaders,  espe- 
cially in  the  matter  of  making  appointments,  than  it  would 
be  used  by  the  electorate  legitimately  to  subject  the  appoint- 
ing power  to  their  will. 

The  chief  justice  must  also  be  in  the  highest  degree  inter- 
ested in  and  responsible  for  the  administration  of  justice  by 
the  court.  This  means  that  he  must  have  large  administrative 
powers  over  the  activities  of  the  associate  judges. 

Inevitably  such  an  appointing  power  would  be  legally  con- 
ferred and  conspicuous  to  a  high  degree.  Since  the  chief  justice 
is  elected  from  the  metropolitan  district  which  he  serves,  the 
home-rule  principle  is  applied. 

The  plan  is  plainly  an  application  of  short  ballot  principle 
to  the  judiciary. 

A  precedent  for  this  method  of  selecting  judges  exists  in 
New  Jersey.    There  the  chancellor  for  the  State  at  large,  who 


610 

is  appointed  by  the  Governor  with  the  approval  of  the  senate 
for  a  term  of  seven  years,  is  given  power  to  appoint  his  vice 
chancellors  to  the  number  of  seven,  each  for  a  term  of  seven 
years.  This  seems  to  have  worked  admirably  in  building  up  a 
court  with  an  able  and  effective  corps  of  judges. 

The  following  extract  from  the  letter  of  Mr.  Charles  H. 
Hartshorne,  of  Jersey  City,  N.  J.,  dated  November  4,  1912, 
explains  the  plan  of  administering  the  chancery  jurisdiction 
in  New  Jersey:  — 

The  Constitution  of  New  Jersey  provides  that  "The  court  of  chancery 
shall  consist  of  a  chancellor."  The  chancellor  is  appointed  by  the  Gov- 
ernor with  the  approval  of  the  Senate,  for  a  term  of  seven  years.  He  is 
usually  reappointed,  though  it  is  an  open  question  whether  this  office  is 
an  exception  to  the  custom  that  judicial  officers  of  the  superior  courts 
shall  be  reappointed,  regardless  of  their  political  affiliations,  so  long  as 
they  are  capable  of  giving  efficient  service.  That  custom  has  resulted 
in  our  having  upon  the  bench  of  the  higher  courts,  judges  who  have  served 
for  very  long  periods  —  twenty-five  years  and  upwards. 

.  A  number  of  years  ago,  the  work  of  the  court  of  chancery  having  be- 
come too  great  for  one  judge  to  dispose  of,  a  statute  authorized  the  ap- 
pointment by  the  chancellor  alone  (without  confirmation  by  any  other 
authority)  of  a  vice-chancellor,  as  assistant.  By  further  statutes,  the 
number  of  these  was  increased  to  seven.  The  court  now  consists  of  a 
chancellor  and  seven  vice-chancellors,  who  sit  separately  in  different 
parts  of  the  state.  The  vice-chancellors  are  appointed  for  seven-year 
terms.  That  bench  is  generally  regarded  as  the  strongest  in  the  State 
and  has  given  entire  satisfaction  to  the  bar  and  to  the  public. 

The  vice-chancellors  hear  interlocutory  motions  in  nearly  all  cases 
imder  a  standing  rule  of  the  court,  but  they  conduct  trials  and  final  hear- 
ings only  upon  an  order  of  reference  from  the  chancellor.  After  trial 
they  write  the  opinion  of  the  court,  which  is  usually  reported,  and  advise 
the  decree,  which  is  then  signed  by  the  chancellor.  No  appeal  lies  from 
their  decree  to  the  chancellor,  but  all  such  decrees  may  be  appealed  directly 
to  the  Court  of  Errors  and  Appeals. 

Theoretically,  the  vice-chancellors  are  merely  referees  who  report  and 
advise  the  chancellor,  the  decree  being  made  by  him  upon  their  report. 
In  actual  practice,  however,  they  are  members  of  the  court  of  chancery, 
in  fact  (but  not  in  form),  making  the  final  decree  of  that  court. 

The  system  has  worked  very  satisfactorily  in  respect  to  the  character 
and  attainments  of  the  members  of  that  bench,  but  the  work  of  the  court 
in  populous  cities  is  a  good  deal  in  arrear.  This  is  due  to  the  volume  of 
business  having  outgrown  the  number  of  vice-chancellors. 


611 

The  advantages  of  such  an  appointing  power  over  that 
exercised  by  the  poHtical  party  leaders  under  the  elective 
system  is  obvious.  The  latter  is  extra-legal,  far  less  con- 
spicuous, far  less  responsible  for  or  interested  in  the  due  ad- 
ministration of  justice,  and  quite  free  from  any  direct  respon- 
sibility to  the  electorate. 

Sometimes  ugly  hints  get  abroad  that  particular  party  leaders 
are  actually  interested  in  securing  as  judges  men  who  may  be 
relied  upon  to  give  special  immunity  to  certain  offenders  from 
the  criminal  law.  The  motive  is  very  strong  on  the  part  of 
the  organization  chiefs  to  reward  with  an  appointment  to  the 
bench  those  who  have  done  more  in  the  way  of  political  service 
to  the  organization  than  in  practice  in  the  courts.  Finally, 
the  appointing  power  in  the  party  organization  leaders  is  not 
as  directly  subject  to  the  electorate  as  it  should  be. 

Of  course,  there  are  some  exceptional  cases  where  party 
leaders  have  felt  their  responsibility  for  good  appointments 
to  the  bench.  These  are  the  shining  examples.  They  are  not 
the  rule. 

It  is  a  mistake,  however,  to  condemn  too  harshly  party  or- 
ganization leaders  because  of  the  existence  in  them  of  this 
appointing  power.  They  are  not  really  responsible  for  its  being 
in  their  hands.  The  elective  system  of  selecting  judges  forces 
this  appointing  power  upon  the  party  organization  leaders. 
Since  selection  by  the  people  is  impossible,  and  since  we  abhor 
selection  by  chance  and  the  resulting  political  chaos,  the  ap- 
pointing power  gravitates  necessarily  toward  that  political 
organization  which  stands  between  the  electorate  and  those 
conditions.  The  party  organization  leaders  only  exercise  the 
appointing  power  the  way  it  is  to  be  expected  that  men  in  their 
position  would.  They  become  blameworthy  only  when  they 
resist  their  deprivation  of  the  appointing  power  and  the  plac- 
ing of  it  in  better  hands.  As  far  as  the  directors  are  advised, 
the  party  organization  leaders  have  not  been  presented  with 
any  plan  which  deprives  them  of  the  power  of  appointing 
judges  and  hands  that  appointing  power  over  to  some  better 
authority.  It  follows,  therefore,  that  the  party  organization 
leaders  have  not  yet  been  placed  in  a  position  of  opposition 
to  such  a  movement. 


612 

The  advantages  of  placing  the  appointing  power  in  the  hands 
of  the  chief  justice  instead  of  in  the  Governor  are  equally- 
clear.  The  chief  justice  is,  far  more  than  the  Governor,  re- 
sponsible for  and  interested  in  the  due  administration  of  justice 
by  the  court.  His  responsibility  to  the  electorate  for  his  ap- 
pointments is  much  more  direct  than  that  of  the  Governor. 
Appointments  by  the  Governor  are  only  a  small  part  of  his 
record,  while  appointments  by  the  chief  justice  are  the  larger 
part  of  his  record.  The  Governor  appoints,  and  if  he  selects 
a  man  believed  to  be  capable  his  responsibility  ends.  But  the 
chief  justice  who  appoints  must  bear  from  day  to  day  any 
inefficiency  or  faults  which  his  appointees  may  develop.  He 
has  the  strongest  possible  interest,  therefore,  to  secure  men 
who  are  really  efficient  to  do  the  work  of  a  court  which  he  is 
continuously  responsible  for  as  a  whole.  It  is  not  enough  that 
a  chief  justice  should  appoint  a  man  who  is  generally  thought 
to  be  satisfactory.  He  must  go  farther  and  be  sure  that  he 
secures  a  man  whose  future  performances  will  strengthen  the 
efficiency  of  the  court.  Here  is  the  human  motive  which  must 
be  most  relied  upon  to  defeat  appointments  of  inferior  men 
for  purely  political  reasons.  Appointment  by  the  chief  justice 
for  the  district  also  satisfies  the  home-rule  principle,  which 
appointment  by  the  Governor  does  not  do. 

The  placing  of  the  appointing  power  in  an  elected  chief 
justice  is  better  than  placing  it  in  an  elected  supreme  court. 
The  latter  method  of  appointment  would  not  satisfy  the  home- 
rule  principle.  The  Supreme  Court  cannot  be  made  to  be 
responsible  or  interested  in  the  operation  of  a  court  for  a 
metropolitan  district  in  so  great  a  degree  as  must  be  an  elected 
chief  justice.  When  appointments  are  made  by  a  number  of 
the  supreme  court  judges  the  responsibility  is  not  concentrated, 
as  it  is  when  a  chief  justice  alone  appoints.  The  judges  of  the 
supreme  court  must  come  before  the  people  for  election  on 
issues  other  than  the  exercise  of  an  appointing  power.  Hence 
an  appointing  power  in  the  judges  of  such  a  court  is  not  directly 
subject  to  the  electorate  in  the  same  degree  as  the  appointing 
power  in  the  chief  justice. 

Appointment  by  lawyers  through  the  device  of  giving  them 
power  to  make  bar  association  nominations  is  too  irresponsible 


613 

and  uncertain  of  beneficial  results,  especially  where  the  lawyers 
are  large  in  number,  to  be  seriously  considered  as  against  ap- 
pointment by  an  elected  chief  justice. 

Methods   of  Retiring  the  Appointed  Associate  Judges. 

Each  associated  judge  appointed  by  the  chief  justice  should 
hold  for  an  indeterminate  period.  The  chief  justice  would  only 
fill  vacancies  which  occurred  during  his  comparatively  short 
tenure.  This  would  mean,  of  course,  very  few  appointments 
during  each  term  of  office  of  the  chief  justice.  Until  all  the 
judges  had  been  appointed  it  would,  of  course,  be  advisable 
that  the  system  of  appointment  should  come  in  gradually. 
That  could  be  accomplished  by  providing  that  the  chief  justice 
should  not  fill  more  than  one-fourth  or  one-third  of  all  the 
judgeships  by  appointment  during  any  single  four  or  six  year 
term. 

The  associate  judges  so  appointed  by  the  chief  justice  may 
be  subject  to  be  retired  by  impeachment;  by  some  form  of 
legislative  recall,  and  by  popular  vote  at  periodical  elections, 
at  which  the  only  question  submitted  would  be:  "Shall  the 
judge  be  continued  in  ofiice?"  Such  election  should  be  held, 
as  already  suggested,  preferably  three,  nine  and  eighteen  years 
after  the  judge's  appointment.  That  would  mean  three  sub- 
missions in  eighteen  years,  which  is  exactly  what  each  judge 
now  undergoes  if  his  term  is  one  of  six  years. 

Objections  to  the  Third  Plan  answered. 

What  are  the  objections  to  such  a  plan  and  how  are  they 
answered? 

It  will  be  objected  that  to  give  the  chief  justice  the  power 
to  appoint  associate  justices  is  to  lodge  too  much  power  in 
one  man.  But  the  power  is  not  so  extensive  as  it  at  first  ap- 
pears. The  chief  justice  can  only  fill  vacancies  which  occur 
during  his  term  of  office.  And  until  all  the  judges  are  ap- 
pointed no  chief  justice  should  be  permitted  in  his  term  to 
appoint  more  than  one-fourth  or  one-third  of  the  total  number 
of  judges  in  the  court.  Then  it  must  not  be  overlooked  that 
the   chief  justice  is  answerable  directly  to  the  electorate  at 


614 

short  intervals  and  may,  if  thought  necessary,  be  made  subject 
to  popular  recall  at  any  time. 

It  will  no  doubt  be  feared  that  the  chief  justice  will  fall 
under  the  influence  of  the  party  organization  leaders  and 
hence  will  exercise  his  power  of  appointment  as  directed  by 
them.  This,  however,  will  not  frighten  any  one  w^ho  realizes 
that  judges  are  now  appointed  wholesale  directly  by  the  same 
party  organization  leaders.  When  the  truth  about  the  present 
method  of  appointment  is  faced  it  will  be  realized  that  the 
public  will  be  much  better  served  by  a  few  appointments  by  a 
chief  justice  who  is  under  the  control  of  the  party  leaders  than 
by  wholesale  appointments  by  these  same  party  leaders  direct. 
The  power  of  the  chief  justice  is  so  conspicuous  and  his  respon- 
sibility for  the  due  administration  of  justice  so  great,  that  he 
would  be  forced  to  try  to  persuade  the  party  leaders  to  let  him 
appoint  some  men  of  superior  talents. 

The  chances,  however,  are  that  the  chief  justice  would  be 
so  important  and  conspicuous  an  officer  and  his  power  such 
that  his  nomination  and  election  would  have  to  be  much  more 
fully  considered  than  is  the  case  where  the  party  leaders  ap- 
point to  a  nomination  and  seek  the  election  of  an  obscure 
member  of  a  bench  composed  of  a  considerable  number  of 
judges.  Necessarily,  therefore,  the  chief  justice  would  gen- 
erally possess  a  fair  degree  of  independence,  and  this  would 
be  reflected  in  his  appointments. 

The  independence  of  the  chief  justice  may  be  further  in- 
creased by  a  provision  which  permits  him  on  his  own  motion 
to  remain  one  of  the  associate  judges  of  the  court  after  he  has 
failed  of  re-election  as  chief  justice.  The  obvious  objection  to 
this  is  that  we  should  have  an  associate  judge  who  had  been 
disapproved  at  the  polls.  But  the  issue  in  an  election  for  chief 
justice  would  be  political  and  not  personal  or  judicial.  It 
would  go  to  the  exercise  of  the  administrative  powers  conferred 
upon  the  chief  justice  and  the  power  of  appointment.  Not 
once  in  many  times  would  it  go  to  the  chief  justice's  ability  to 
serve  as  a  judge.  Therefore  repudiation  at  the  polls  would  not 
be  at  all  inconsistent  with  the  chief  justice  remaining  as  one  of 
the  associate  judges  of  the  court.  As  such  he  would  be  assigned 
to  duty  by  the  incoming  chief  justice  and  would  be  subject  to 


615 

have  his  name  submitted  at  the  end  of  a  three-year  period  to 
the  electorate  with  the  question:  "Shall  he  be  continued  in 
office?"  It  would  seem,  on  the  whole,  that  the  gain  in  inde- 
pendence on  the  part  of  the  chief  justice  would  be  greater  than 
the  danger  of  having,  for  three  years  even,  an  undesirable 
associate  judge. 

All  fear  of  the  chief  justice  having  too  much  power  and 
using  it  badly  should  be  dissipated  by  the  provision  made  for 
his  retirement  by  impeachment,  legislative  recall  and  frequent 
election  (which  is  equivalent  to  a  recall  by  the  electorate  at 
regular  intervals),  and  perhaps  the  recall  initiated  by  petition 
at  any  time. 

It  will,  no  doubt,  be  feared  that  the  appointed  judge  during 
good  behavior  will  suffer  from  lack  of  responsibility  to  the 
electorate  for  the  way  he  exercises  his  judicial  power.  This 
is  very  clearly  prevented,  however,  by  the  provision  for  the 
submission  of  the  judge's  name  to  the  electorate  at  intervals 
of  three,  nine  and  eighteen  years  from  the  date  of  appointment, 
with  the  question:  "Shall  he  be  continued  in  office?"  This 
in  effect  makes  the  judge's  appointment  for  a  probationary 
period  of  three  years,  after  which  time  his  record  is  submitted 
to  the  voters.  If  approved,  he  holds  for  six  years.  If  approved 
the  second  time  he  holds  for  nine  years,  and  if  approved  the 
third  time  he  holds  until  his  retirement  by  death,  resignation 
or  reaching  an  age  limit.  If  this  is  not  sufficient  popular  con- 
trol, it  is  possible  to  take  the  further  step  of  making  each  judge 
subject  to  a  recall  at  any  time  at  a  recall  election  initiated  by 
petition.  But  in  going  so  far  there  is  great  danger  to  the  inde- 
pendence of  the  judge  from  the  threatened  exercise  of  the  recall 
election  by  those  whose  interests  are  inimical  to  the  proper 
administration  of  justice. 

There  may  still  be  fear  that  the  appointed  judge,  even  when 
his  name  must  go  before  the  electorate,  will  become  arbitrary 
in  his  conduct  towards  lawyers  and  their  clients.  The  reason, 
however,  for  such  arbitrariness  on  the  part  of  the  judges  is 
not  that  they  have  been  appointed  so  much  as  because  they 
are  left  without  any  authority  over  them  which  is  responsible 
for  the  way  they  act  and  the  sort  of  work  they  do.  The 
best  preventive  of  arbitrariness,  apart  from  the  submission  of 


616 

judges  to  the  electorate,  is  the  fact  that  there  is  a  chief  justice 
over  them  with  large  powers  as  to  where  the  judge  shall  sit 
and  what  sort  of  cases  he  shall  hear.  An  ugly  disposition  on 
the  part  of  a  judge  can  be  more  effectually  disciplined  through 
the  power  of  such  a  chief  justice  than  in  any  other  way.  The 
fact  that  judges  are  part  of  an  organization  with  a  chief  over 
them  who  is  responsible  to  some  extent  for  their  behavior,  and 
the  esprit  de  corps  of  the  court  as  a  whole,  are  important  safe- 
guards against  arbitrariness  and  lack  of  judicial  temper  on  the 
part  of  individual  judges. 

In  a  metropolitan  district  where  the  judges  are  many  and 
the  dockets  long,  the  judges  will  sit  in  different  divisions  for 
handling  special  classes  of  litigation.  There  would  probably 
be  an  appellate  division,  a  chancery  division,  a  common  law 
division  and  a  criminal  causes  division.  Each  would  have  a 
presiding  justice,  and  the  several  presiding  justices  and  the 
chief  justice  would  form  a  judicial  council  or  executive  com- 
mittee with  powers  of  management  of  the  court  as  a  whole 
which  were  not  delegated  to  the  chief  justice  alone.  Among 
other  powers  such  a  judicial  council  should  have  power  to  hear 
complaints  against  judges  and  to  discipline  them  by  public  or 
private  reproval.  It  would  be  entirely  feasible  to  give  such 
council  power,  upon  a  trial  and  for  cause  shown,  to  remove 
from  office  any  judge  except  the  chief  justice.  The  causes  for 
such  removal  should  be  general,  such  as  inefficiency,  incom- 
petency, neglect  of  duty,  or  conduct  unbecoming  a  judge.  A 
small  part  of  the  above  powers  would  free  judges  from  all 
tendencies  to  arbitrariness  or  ill-treatment  of  lawyers  and  liti- 
gants. 

Those  who  think  that  its  novelty  is  an  objection  to  the  plan 
of  selecting  judges  by  the  appointment  of  an  elected  chief 
justice  are  reminded  that  half  a  dozen  years  ago  the  lawyers 
had  practically  never  heard  of  the  plan  of  giving  to  the  courts 
the  power  to  make  rules  of  practice  and  procedure.  To-day 
no  other  method  is  seriously  advocated. 


617 


Fourth    Plan. 

ELECTION  OF  THE  CHIEF  JUSTICE  FOR  A  SHORT  TERM. 
THE  APPOINTMENT  OF  ASSOCIATE  JUDGES  BY  HIM 
WITHOUT  ANY  PROVISION  FOR  THE  RETIREMENT  OF 
ASSOCIATE  JUDGES  BY  POPULAR  VOTE. 

The  provisions  for  carrying  out  this  plan  are  precisely  the 
same  as  those  set  out  for  the  Third  Plan,  omitting  the  sections 
which  provide  for  the  retirement  of  associate  judges  by  pop- 
ular vote.    The  reasons  in  support  of  this  plan  are  as  follows:  — 

(1)  It  is  suggested  that  the  modes  of  retirement  otherwise 
provided  —  removal  by  the  Judicial  Council  and  removal  or 
impeachment  by  the  Legislature  —  are  ample  for  ridding  the 
bench  of  an  incompetent  person.  And  their  procedure  is  sen- 
sible and  practical.  For  charges  resting  upon  specific  facts 
requiring  careful  investigation,  the  Judicial  Council  forms  a 
skilled,  responsible  and  impartial  tribunal.  For  charges  rest- 
ing upon  general  and  indefinite  dissatisfaction,  or  upon  open 
and  positive  public  policies  not  requiring  specific  inquiry,  the 
Legislature  is  a  suitable  tribunal,  representing  popular  convic- 
tions but  still  having  some  sense  of  responsibility,  and  small 
enough  to  offer  at  least  the  chance  of  fair  argument  before 
judgment. 

(2)  The  modes  of  discipline,  otherwise  provided  to  be  exer- 
cised by  the  Judicial  Council,  amply  take  care  of  minor  short- 
comings, and  relieve  a  large  part  of  the  supposed  need  for 
popular  recall.  Moreover,  the  effect  of  such  a  discipline  — 
now  wholly  lacking  in  our  system  —  will  so  tend  to  improve  the 
individual  judge  in  his  shortcomings  that  the  community  will 
get  an  added  protection  —  now  lacking  —  from  the  judge's 
shortcomings,  and  will  thus  take  away  a  large  part  of  the  risks 
of  long  judicial  tenure. 

(3)  Retirement  by  popular  vote,  especially  in  a  metropolitan 
district,  submits  an  issue  of  fact  to  a  tribunal  largely  incom- 
petent to  judge  upon  it.  In  the  first  place,  the  evidence  of  the 
facts  can  never  be  got  effectively  to  the  minds  of  even  a  small 
fraction  of  the  tribunal.     In  the  second  place,  the  tribunal  is 


618 

unqualified  with  standards  of  judgment  upon  many  of  these 
considerations  which  affect  the  propriety  of  judicial  conduct. 
In  the  third  place,  only  a  small  fraction  of  the  tribunal  ever 
would  weigh  the  evidence  or  the  arguments.  One  has  only  to 
peruse  the  method  outlined  on  page  616  for  hearing  charges 
before  the  Judicial  Council  to  realize  how  inferior  is  the  process 
of  hearing  before  a  popular  tribunal. 


619 


BIBLIOGRAPHY. 

Hall,  James  Parker.    "  The  Selection,  Tenure  and  Retirement  of  Judges," 

American  Judicature  Society,  Bulletin  X. 
Choate,  Rufus.    "Judicial  Tenure,"  Massachusetts  Law  Quarterly,  II, 

No.  3. 
Gilbertson,  H.  S.     "  Short  Ballot  and  an  Efficient  Judiciary."    Case  and 

Comment,  XIX,  332  (1912). 
Harley,   Herbert.     "  Ontario  Courts  and  Procedure."     IVIichigan  Law 

Re\aew,  XII,  344-347. 

"Taking  Judges  Out  of  PoHtics."    Annals  of  American  Academy 

of  Political  and  Social  Science,  March,  1916. 

Kales,  Albert  M.  Unpopular  Government  in  the  United  States.  Chap. 
XVIL 

"The  English   Judicature   Acts."     Illinois  State  Bar  Association 

Report,  1913,  325. 

Proposed  Amendments  to  the  (Chicago)  Municipal  Court  Act  Relat- 
ing to  the  Selection  and  Retirement  of  Judges. 

"  Methods  of  Selecting  and  Retiring  Judges  in  a  Metropolitan  Dis- 
trict." The  Annals  of  the  American  Academy,  LII,  1  (March, 
1914),  and  Bui.  VI,  American  Judicature  Society. 

Rosenbaum,  Samuel.     "  Election  of  Judges,  or  Selection."     Illinois  Law 

Review,  IX,  489  (1915). 
Taft,  William  Howard.    "  The  Selection  and  Tenure  of  Judges."    Report 

of  The  American  Bar  Association  (1913),  XXXVIII,  418. 
Trabue,  Edmund  F.    "The  Security  of  Judicial  Tenure."    American 

Law  Review,  XL VII,  No.  5. 


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